Part 3A — Sentences — Community Correction Orders; Division 4 - Conditions Flashcards
48B Definitions
child protection order means any of the following orders under the CYF Act 2005 —
(a) an interim accommodation order;
(b) a family preservation order;
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) Court may attach condition requiring offender to perform unpaid community work
● (2) Purpose for doing so is to adequately punish offender in the community
● (3) Subject to s 48CA, offender must perform the no. of hours specified by the court
● (3A) If the sec gives a direction under 83AU, offender must perform the number of hours of unpaid community work specified by the secretary
● (4) Total number of hours must not exceed 600 hours
● (5) Total number of hours in any 7 day period must not exceed 20 hours
● (6) But offender can perform as many as 40 hours in a week if requests to do so and signed written consent
● (7) If court imposes an unpaid community work condition as sole condition under this Division of a CCO for 300 hours or less, then order expires when work is completed
● (8) If an offender is/will be subject to more than one CCO, 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) Court may specify that the unpaid community work 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) Section applies if a court when making a CCO attaches both an unpaid community work condition and a treatment and rehabilitation condition to the order.
(2) May determine some/all of the hours satisfactorily undertaken for treatment and rehab are to be counted as hours of UCW for the purpose of the UCW condition
● (3) If court makes this determination and does not specify number of hours of treatment and rehab that are to be counted as unpaid work, then it’s all TR hours so counted.
48D Treatment and rehab condition
(1) Court making a CCO may require an offender to undergo treatment and rehabilitation specified by the court and directed by the Secretary unless otherwise directed by the court. (2) When attaching such a 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 pre-sentence report in relation to T&R of the offender.
(3) Treatment and rehab specified in the condition must be any one or more of the following:
● (a) Any assessment and treating (including testing) for drug abuse or dependency
● (b) Any assessment and treating (including testing) for alcohol abuse or dependency
● (c) Any assessment and treatment (including testing) at a residential facility for —
○ (i) Withdrawal from or rehab for drug abuse or dependency; or
○ (ii) Withdrawal from or rehab for alcohol 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 psych, neuropsych, 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/rehab that 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 T&R condition.
(4) For the purposes of (1), the Secretary may give a direction to the offender:
● (a) To undergo the treatment and rehab specified by the Secretary in the direction;
● (b) In relation to any aspect of the treatment and rehab that sec has specified, a direction:
○ (i) Requiring attendance of the offender at a specified location; and
○ (ii) Requiring participation of offender in particular kinds of treatment or rehab
48E Supervision condition
(1) Court making CCO may attach Condition that the offender may be supervised, monitored, managed as directed by the Sec
(2) Court may attach a supervision condition for the purpose of addressing the need to ensure the compliance of the offender with the order
(3) Must have regard to information, matters and recommendations made in the pre sentence report when attaching condition.
(4) May specify that the condition applies for the period of the order or any lesser period.
48F Non-association condition
(1) Court making CCO may attach condition directing non-association with (a) particular person or (b) class of persons
(2) when attaching condition, court May have regard to the effect the attaching of the condition may have on any employment of the offender
(3) May specify that it applies for period of the order or any lesser period.
48G Residence restriction or exclusion condition
(1) Court making a CCO may attach Condition directing that the offender must —
● (a) Reside at a place specified in the order; or
● (b) Not reside at a place specified in the order
(2) When imposing such a condition, court may:
● (a) Have regard to the risk the condition poses to the safety of any person, including a child, who is likely to reside with the offender under the order; and
● (b) Have regard to any effect the condition may have on employment of the offender.
(3) May specify applies for duration of the order or a shorter duration.
(4) If such a condition applies, can’t change place of residence unless the condition is varied.
(5) Court must not attach a resident restriction or exclusion condition that is inconsistent with a child protection order, FVIO or a personal safety intervention order.
48H place or area exclusion condition
(1) Offender must not enter or remain in specified area or place. (2) May have regard to effect on employment, (3) may be for duration of the order or a lesser period. (4) Cant be inconsistent with child protection order, FVIO, or personal safety intervention order.
48I curfew condition
(1) can attach condition Directing that offender remain at a place specified in the order between specified hours of the day for the period specified in the order.
(2)(a) May have regard to risk condition could pose to safety of any person including child who is likely to reside with the offender, under order(b) And also effect on employment
(3) Curfew (time must remain at place) (a) can’t be less than 2 hours each day and must be (b) no more than 12 hrs for period specified in order, which can’t be more than 6 months.
(3A) If sec gives a direction under 83AV, offender must remain at the place for the increased hours or period specified by the secretary.
(4) Cant be inconsistent with child protection order, FVIO, personal safety intervention order.
48J Alcohol exclusion condition
● (1) Court can make order that offender comply with the conditions outlined in (2)
● (2) these conditions are:
○ (a) Cant enter or remain in any licensed premises characterised as nightclub, bar, restaurant, cafe, reception centre or function centre; and
○ (b) Must not enter or remain at location of any major event; and
○ (c) Must not enter or remain in a bar area of a licensed premises; and
○ (d) Must not consume liquor in any licensed premises.
● (3) Court can make exceptions to premises to which restrictions (a)-(c) (apart from consumption (d)) don’t apply (e.g. if their workplace or like an RSL or something?)
● (4) Can attach to address alcohol’s role in offending behaviour (not just to punish)
● (5) May have regard to any effect the attaching of the condition may have on any employment of the offender
● (6) May specify whether applies at certain hours of the day or at all times
● (7) Can be for whole of order or any lesser period
● (8) bar area means an area within a licensed premises that is set aside for the service of liquor for consumption on that premises
licensed premises has the same meaning as in the Liquor Control Reform Act 1998;
liquor has the same meaning as in the Liquor Control Reform Act 1998;
major event has the same meaning as in the Liquor Control Reform Act 1998.
48JA Bond condition
(1) Court making CCO can attach condition requiring offender to pay amount of $ as a bond, subject to forfeiture if don’t comply with order. (2) Purpose = ensuring compliance with order.
(3), when attaching condition, court must: (a) Have regard to financial circs of offender as contained in the PSR to support bond payment (b) Fix a time period for payment of bond
(4) Any amount of $ paid:
● (a) Must be paid to the court making the order; and
● (b) Must be held on trust by Crown. (5) Interest earned goes to consolidated fund.
● (6) Crown must repay $ within 7 days of order cancelling/varying/dealing with CCO or bond condition, unless court orders longer period
● (7) Crown must repay to 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) Any $ forfeited goes to consolidated fund
48K judicial monitoring condition
● (1) Court making CCO may attach condition that the offender be monitored by the court, if the court is satisfied that it is necessary for the court to review (during the course of the order) the compliance of the offender with the order.
● (2) Can make directions about (a) when to re-appear before the court for review of compliance and (b) any information, report or test that must or may be provided in the course of review under s48L (3) Not to be taken to empower medical testing or medical report w/o the consent of the offender
● (4) Remains in force for period specified or otherwise for whole of the order
● (5) Review can be conducted by same or different judicial officer
48L power of court on review under a judicial monitoring condition
● (1) In any proceeding where an offender re-appears before a court for review of the offender’s compliance with the order under a JMC
● (a) Court may require or invite the offender to answer questions or produce information (incl reports, results of medical examinations or medical tests)
● (b) May invite a medical practitioner to produce report or results of any test
● (c) May require or invite any of the following persons to provide info to the court either verbally or in written form:
○ (i) The secretary; (ii) The person or body who prosecuted the offender
○ (iii) Any other person the court considers appropriate
● (2) On JMC review proceeding, court (a) may:
○ (i) Cancel the condition; (ii) Vary the condition including extending or shortening (iii) Take no further action in relation to the condition
● (2)(b) May give further directions as to —
○ (i) Time or times at which offender must re-appear before the court for other reviews under this section; and (ii) Any information, report or test that must or may be provided in the course of another review under this section
● (3) Fail to re-appear for JMC review hearing = court may issue warrant to arrest
48LA Electronic monitoring of offender
● (1) Court which attaches monitored condition to a CCO may attach to that condition a requirement that the offender is to be EM. (2) the purpose is to monitor compliance of the offender with the monitored condition
● (3) Must have regard to recommendations, information and matters identified in the PSR in relation to EM of the offender
● (4) A Court may only attach an EM requirement if —
○ (a) Pre-sentence report includes a positive statement that:
■ (i) Having had regard to offender’s circs, offender is suitable person to be EM’d; and (ii) Appropriate resources or facilities are available; and
○ (b)(i)-(iii) The court is satisfied of the same (suitable/appropriate/resources)
● (5)-(6) Must specify period or otherwise the whole period of the monitored condition
● (7) If the Secretary gives a direction under section 83AV and the offender is subject to an EM requirement that is attached to a curfew condition, the offender must be monitored for the increased period
● (8) If an EM requirement is attached to a monitored condition the following terms are attached to the CCO
○ (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) offender must for 24 hours of each day be EM’d and wear an EM device fitted to them at the direction of the Secretary for the specified period; and
○ (c) the offender must not, without reasonable excuse, tamper with, damage, disable or remove any EM device or equipment used for the EM; and
○ (d) the offender must accept any Secretary visit to the place where offender resides, at any time it is reasonably necessary, for any purpose including to install, repair, fit or remove any EM device or equipment used for the EM; and
○ (e) the offender must comply with any direction given by the Secretary under s 83AV(3) in respect of the EM requirement of a curfew condition.
