Victoria Introduces Legislation to Reign in Use of Community Correction Orders in Sentencing

The Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016 (Vic) (the Bill) was introduced into the Victorian Assembly on 12 October 2016 and has recently (on 27 October 2016) passed through the Assembly. The Bill is seen as part of an overall attempt by the Victorian Government to promote its "law and order" credentials, by restricting the use by the courts of community correction orders for serious crimes, such as rape and murder. The Bill is part of a range of measures introduced by the Victorian Government to combat what is perceived as a rising tide of crime in Victoria, which includes, violent carjackings and home invasions.

What the Bill Provides

In the second reading speech the Attorney-General (the AG) Mr Pakula indicated that, while the government agreed with the value of "community correction orders" as a sentencing tool, it felt that changes made by the former government in 2013-2014 abolishing suspended sentences, parole reforms and expansion of the use of community correction orders ". . . went too far".

Further, the AG indicated the Victorian Government's area of greatest concern was about the use of community correction orders ". . . in relation to serious offending, where a term of imprisonment would be a more appropriate sentence
given the gravity of the offence and culpability of the offender".

Thus in broad terms the Bill restricts the availability of community correction orders and other non-custodial orders for the most serious offences. The Bill is also intended to ensure that the availability of community correction orders is ". . . more consistent with community expectations." 

The Bill also make some minor and technical amendments to the Sentencing Act 1991 (Vic), Corrections Act 1986 (Vic) and the Bail Act 1977(Vic).

New Classes of Serious Offences

The Bill introduces two new classes of serious offences into the Sentencing Act 1991 (Vic) to be known as "category 1 offences" and "category 2 offences".

Category 1 offences will cover the most serious criminal offences and will include murder, causing serious injury intentionally or recklessly in circumstances of gross violence, rape, the most serious child sexual offences (including incest), and the trafficking or cultivating of a drug of dependence (namely, a large commercial quantity).

In the case of category 1 offence the Bill  provides that when sentencing a person for a category 1 offence the court must impose a custodial order, and a term of imprisonment combined with a community correction order (a  combined order) is prohibited. Further, there are to be ". . . no exceptions to the requirement to impose a custodial order".

Category 2 offences will cover other serious criminal offences including manslaughter, child homicide, causing serious injury intentionally, kidnapping, arson causing death, trafficking or cultivating a drug of dependence (a commercial quantity), and providing documents or information facilitating terrorist acts.

In the case of a category 2 offence the Bill provides that a court must impose a custodial order (other than a combined order) when sentencing a person, unless the court finds that one of the special reasons provided for in the Bill exists.

Special reasons include:

• the offender has assisted or undertaken to assist in the investigation or prosecution of an offence;
• the offender can prove impaired mental functioning;
• the offender is between 18 and 21 years at the time of the offence, and can prove a particular psychosocial immaturity, or 
• there are substantial and compelling reasons that justify not imposing a custodial order.

If the court finds that a special reason exists, it will retain full sentencing discretion and may impose a community correction order, combined order or other lesser non-custodial order.

Availability of Combined Orders Reduced

According to the AG, the changes proposed by the Bill will reduce the availability of combined orders by reducing the length of a sentence of imprisonment that may be combined with a community correction order to one year or less and providing that a court must not fix a non-parole period as part of the sentence. Ensuring that where combined orders are imposed, an offender cannot be released on parole before commencing the community correction order component of their sentence. The Bill also seeks to preserves the role of the current parole system in overseeing the discretionary release of prisoners and monitoring reintegration into the community - applying strict enforcement powers where quick return to jail is required.

Community correction orders imposed by higher courts will also be limited to five years. Higher courts currently may impose a community correction order up to the length of the maximum term of imprisonment for the relevant offence, thus the period could be as much as 25 years in a case of aggravated burglary, according to the AG. The Bill provides that the maximum length of a community correction order that may be made by the higher courts for one or more offences is five years - consistent with the maximum length of a community correction order that may be imposed by the Magistrates Court in Victoria.

Statement About Sentencing Discount on Guilty Pleas

The Sentencing Act 1991 (Vic) section 6AAA requires a court to state the sentence and non-parole period (if any) that it would have imposed but for the offender's plea of guilty - a provision designed to encourage early guilty pleas. The Bill makes it clear that a section 6AAA statement must be made in relation to orders to imprison made under section 7(1)(a) of the Sentencing Act 1991, combined orders and community correction orders of two years or more duration.

Amendments to Historical Homosexual Conviction Expungement Scheme

The Bill makes it clear that Part 8 of the Sentencing Act 1991 (Vic), which establishes the historical homosexual conviction expungement scheme, applies to the Children's Court and allows a Children's Court conviction to be expunged. Further, the Bill will amends the definition of "data controller" to more accurately describe the
officer responsible for official records at the courts and VCAT, for the purposes of the historical homosexual conviction expungement scheme.

Other technical amendments repeal provisions in the Bail Act 1977 (Vic) requiring written notice of a trial date to be provided to the accused and any sureties - such requirements according to the AG ". . . are redundant and do not reflect the current practice of service of a trial indictment". References to repealed sections of the Corrections Act 1986 (Vic) and the Sentencing Act 1991 (Vic) are updated.

Next Steps

While being sold by the Victorian Government as an attempt to reign in changes that went too far by the previous government the Bill represents a range of basic "law and order" measures which should pass in due course without much controversy.

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Sentencing (Community Correction Order) and Other Acts Amendment Bill 2016 and 2nd Reading and EM as reported in the TimeBase LawOne Service.

MPs hail tougher sentences for criminals (The News)