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Justice Legislation Miscellaneous Amendment Act 2018

No. of 2018

TABLE OF PROVISIONSClause Page

Part 1—Preliminary 1

1 Purposes 12 Commencement 3

Part 2—Amendment of Children, Youth and Families Act 2005 4

3 Supreme Court or County Court may exercise sentencing powers of Children's Court 4

4 New section 631 inserted 4

Part 3—Amendment of Coroners Act 2008 and consequential amendments 5

Division 1—Coroners Act 2008 5

5 Reportable death 56 Determination by coroner that reported death not a reportable

death 57 Certain reportable deaths do not require investigation 68 New section 76A inserted 69 Section 77 amended 810 Appeal in relation to determination that death not a reportable

death 1011 Appeal against refusal by Coroners Court to re-open

investigation 1112 Appeal to Supreme Court 1113 New section 118A inserted 1114 Clause 23 of Schedule 1 inserted 12

Division 2—Consequential amendment of Births, Deaths and Marriages Registration Act 1996 13

15 Notification of cause of death by coroner 13

Part 4—Amendment of Crimes Act 1958 14

Division 1—Aboriginal persons in custody 14

16 Definitions 1417 New section 464AAB inserted 14

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18 New section 464FA inserted 15

Division 2—Forensic procedure orders 16

19 Registration of orders 16

Division 3—Dangerous driving 16

19A Dangerous driving causing death or serious injury 16

Part 5—Amendment of Criminal Procedure Act 2009 18

Division 1—Cross-examination of witnesses in certain committal proceedings 18

20 Section 99 repealed 1821 Hearings in a committal proceeding and attendance of accused 1822 Contents of case direction notice 1823 Late application for leave to cross-examine witness 1924 Section 123 substituted 1925 Leave required to cross-examine other witnesses 1926 Committal mention hearing 2027 Determination of committal proceeding where hand-up brief

used 20

Division 2—Pre-trial examination and cross-examination of witnesses 21

28 Part 4.11 repealed 2129 New Division heading inserted 2130 Order for taking evidence from a witness before trial 2231 New sections 198A, 198B and 198C inserted 22

Division 3—Admission of recorded evidence in sexual offence cases 25

32 Admission of recording of evidence of complainant 25

Division 4—Presence of witnesses in courtroom 26

33 Victim who is a witness entitled to be present in court 26

Division 5—Indictable offences that may be heard and determined summarily 26

34 Indictable offences that may be heard and determined summarily 26

Division 6—DPP's right of appeal 27

35 DPP's right of appeal—failure to fulfil undertaking 2736 New sections 290A, 290B, 290C and 290D inserted 2737 New evidence—effect on sentence 2938 Ancillary orders 3039 Consequential amendment—Appeal Costs Act 1998 30

Division 7—Transitional provisions and miscellaneous amendments 30

40 Special hearing for recording evidence 3041 Statute law revision 3042 Section 449 inserted 30

Part 6—Amendment of Domestic Building Contracts Act 1995 33

43 New section 45BA inserted 3344 Acceptance or rejection of referral 3345 Notice of decision 3346 Certificate of conciliation—dispute not suitable for

conciliation 3347 Withdrawal of referral or matter referred 3448 Notice if dispute not resolved by conciliation 3449 Report if building work defective or incomplete 3450 Notice to insurer 3451 Certificate of conciliation required to bring proceeding in

VCAT to resolve domestic building work dispute 3552 Publication of directions 35

Part 7—Amendment of Estate Agents Act 1980 37

Division 1—Rebate statements 37

53 Offence not to give certain information about commission 3754 New Division 3 of Part IX inserted 38

Division 2—Miscellaneous 39

55 Definitions 3956 Secretary's power to enter into arrangements with financial

institutions 39

Part 8—Amendment of Evidence Act 2008 40

57 Improper questions 40

Part 9—Amendment of Family Violence Protection Act 2008 41

58 Procedural requirements for person directed to a police station, or person apprehended and detained 41

59 Relationship with certain orders under the Sentencing Act 1991 41

60 New Division 12 inserted in Part 14 42

Part 10—Amendment of Honorary Justices Act 2014 43

61 Permission for retired person to use title 4362 New section 40A inserted 43

Part 11—Amendment of Personal Safety Intervention Orders Act 2010 44

63 Relationship with certain orders under the Sentencing Act 1991 44

64 New Division 4 inserted in Part 13 44

Part 12—Amendment of Retirement Villages Act 1986 45

65 Regulations 45

Part 13—Amendment of Rooming House Operators Act 2016 46

66 Definitions 4667 Offence to operate a rooming house without a licence 4668 Application for licence—licence disqualification criteria 4769 Application for renewal of licence—renewal disqualification

criteria 4870 Disciplinary powers of VCAT—orders 4871 Entry without consent or warrant 4972 New section 79A inserted 49

Part 14—Amendment of Sentencing Act 1991 and consequential amendments 50

Division 1—Sentencing Act 1991 50

73 Definitions—category 1 offences 5074 Definitions—category 2 offences 5275 Definitions inserted 5476 Sentencing guidelines 5477 Definition of serious sexual offender 5778 Assaulting, etc. emergency workers, custodial officers and

youth justice custodial workers on duty 5879 Special reasons relevant to imposing minimum non-parole

periods 5880 New section 44A inserted 6081 Powers of the court on finding of guilt for contravention of

community correction order 6182 New section 115F inserted 6283 New section 168 inserted 6384 Statute law revision 65

Division 2—Consequential amendment of Crimes Act 1958 65

85 Causing serious injury intentionally 6586 Causing serious injury recklessly 6687 Causing injury intentionally or recklessly 6688 Armed robbery 6789 Home invasion 6790 Aggravated home invasion 67

91 Carjacking 6892 Aggravated carjacking 6893 Intentionally exposing an emergency worker, a custodial

officer or a youth justice custodial worker to risk by driving 6894 Aggravated offence of intentionally exposing an emergency

worker, a custodial officer or a youth justice custodial worker to risk by driving 69

95 Culpable driving causing death 6996 Dangerous driving causing death 70

Part 15—Repeal of amending Act 71

97 Repeal of amending Act 71═════════════

Endnotes 72

1 General information 72

Justice Legislation Miscellaneous Amendment Act 2018†

No. of 2018

[Assented to ]

The Parliament of Victoria enacts:

Part 1—Preliminary1 Purposes

The purposes of this Act are—

(a) to amend the Children, Youth and Families Act 2005 in relation to the sentencing of certain young offenders by the Supreme Court or the County Court; and

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(b) to make various amendments to the Coroners Act 2008 and a consequential amendment to the Births, Deaths and Marriages Registration Act 1996; and

(c) to amend the Crimes Act 1958 in relation to Aboriginal persons taken into custody, forensic procedure orders and dangerous driving; and

(d) to amend the Criminal Procedure Act 2009 in relation to witnesses, recorded evidence, indictable offences that may be heard and determined summarily and the DPP's right of appeal; and

(e) to amend the Domestic Building Contracts Act 1995 in relation to referred domestic building work disputes and publication of directions; and

(f) to amend the Estate Agents Act 1980 in relation to rebate statements and to make minor technical amendments; and

(g) to amend the Evidence Act 2008 to require that improper questions be disallowed; and

(h) to amend the Family Violence Protection Act 2008 in relation to the relationship of orders with certain conditions under that Act with certain orders under the Sentencing Act 1991; and

(i) to amend the Honorary Justices Act 2014 in relation to the use of the titles "JP (Retired)" and "BJ (Retired)"; and

(j) to amend the Personal Safety Intervention Orders Act 2010 in relation to the relationship of orders with certain conditions under that Act with certain orders under the Sentencing Act 1991; and

Clause Page

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(k) to amend the Retirement Villages Act 1986 to provide for making regulations prescribing different infringement penalties for different classes of persons; and

(l) to amend the Rooming House Operators Act 2016 in relation to licence disqualification criteria and other rooming house operator provisions; and

(m) to make various amendments to the Sentencing Act 1991 and to make consequential amendments to the Crimes Act 1958.

2 Commencement

(1) Part 1 comes into operation on the day on which this Act receives the Royal Assent.

(2) Sections 73(2), 83 and 84 and Part 15 come into operation on the day after the day on which this Act receives the Royal Assent.

(3) Division 1 of Part 7 is taken to have come into operation on 9 June 2018.

(4) Subject to subsection (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(5) If a provision referred to in subsection (4) does not come into operation before 1 October 2019, it comes into operation on that day.

Clause Page

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Part 2—Amendment of Children, Youth and Families Act 2005

3 Supreme Court or County Court may exercise sentencing powers of Children's Court

At the end of section 586 of the Children, Youth and Families Act 2005 insert—

"(2) In sentencing a child aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in the Sentencing Act 1991 that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.".

4 New section 631 inserted

At the end of Part 8.6 of Chapter 8 of the Children, Youth and Families Act 2005 insert—

"631 Transitional provision—Justice Legislation Miscellaneous Amendment Act 2018

Section 586(2) as inserted by section 3 of the Justice Legislation Miscellaneous Amendment Act 2018 applies to an offence committed on or after the commencement of section 3 of that Act.".

Part 6—Amendment of Domestic Building Contracts Act 1995

Justice Legislation Miscellaneous Amendment Act 2018No. of 2018

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Part 3—Amendment of Coroners Act 2008 and consequential amendments

Division 1—Coroners Act 20085 Reportable death

After section 4(1) of the Coroners Act 2008 insert—

"(1A) If a determination is made under section 16(1A), that death is not a reportable death for the purposes of this Act on and from that determination.".

6 Determination by coroner that reported death not a reportable death

(1) After section 16(1) of the Coroners Act 2008 insert—

"(1A) Without limiting subsection (1), a coroner may determine that a death described in section 4(2)(h) or (i) is not a reportable death if satisfied the death is not a death described in section 4(2)(a), (b), (c), (d), (e), (f), (g) or (j).".

(2) In section 16(2) of the Coroners Act 2008, after "reportable death" insert "under subsection (1) or (1A)".

(3) After section 16(5) of the Coroners Act 2008 insert—

"(6) If a coroner determines under this section that a death is not a reportable death under subsection (1) or (1A), the principal registrar must notify the Registrar of Births, Deaths and Marriages, without delay, of the prescribed particulars.".



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7 Certain reportable deaths do not require investigation

(1) In section 17(1) of the Coroners Act 2008, for "Subject to subsection (3), a" substitute "A".

(2) In section 17(1)(a) of the Coroners Act 2008, for "section 4(2)(b)" substitute "section 4(2)(a) (other than a death that appears to have been unexpected)".

(3) After section 17(1)(a) of the Coroners Act 2008 insert—

"(ab) the coroner determines that the death is not a death referred to in section 4(2)(b), (c), (d), (e), (f), (g) or (j); and".

(4) Section 17(1)(c) of the Coroners Act 2008 is repealed.

(5) Section 17(3) of the Coroners Act 2008 is repealed.

8 New section 76A inserted

After section 76 of the Coroners Act 2008 insert—

"76A Amendment of wording of decision

(1) The following persons may apply to the Coroners Court for the making of an amendment to the wording of a decision made by a coroner or the Coroners Court in relation to an investigation of a death—

(a) the senior next of kin of the deceased person;

(b) an interested party in relation to an inquest in respect of the death;



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(c) any other person if the Coroners Court is satisfied that—

(i) the person has a sufficient interest in the investigation; and

(ii) it is appropriate for the person to be granted leave to make the application.

(2) The Coroners Court may order that the wording of the decision be amended in the manner specified in the order if satisfied that the amendment—

(a) would not be inconsistent with a finding under section 67(1) in relation to the investigation to which the decision relates; and

(b) would not require the investigation to be re-opened; and

(c) does not appear to be prejudicial to a person (other than the applicant) who is an interested party in relation to an inquest in respect of the death; and

(d) is otherwise appropriate in all the circumstances.

(3) An application under subsection (1) must be made within 3 months after the date on which the decision was made.

(4) For the purposes of hearing an application made under this section, the Coroners Court must be constituted by the coroner who conducted the original investigation unless—

(a) the coroner who conducted the original investigation no longer holds the office of coroner; or

(b) there are special circumstances.".



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9 Section 77 amended

(1) In the heading to section 77 of the Coroners Act 2008, after "investigation" insert "or setting aside a finding".

(2) For section 77(2) of the Coroners Act 2008 substitute—

"(2) The Coroners Court, if satisfied that there are new facts and circumstances that make it appropriate to do so, may order that—

(a) some or all of the findings be set aside without re-opening the investigation; or

(b) some or all of the findings be set aside and the investigation be re-opened.".

(3) For section 77(3) and (4) of the Coroners Act 2008 substitute—

'(3) For the purposes of this section—

(a) "findings of a coroner" includes findings—

(i) under the Coroners Act 1958 of a person who was a coroner under that Act, despite the repeal of that Act; and

(ii) under the Coroners Act 1985 of a person who was a coroner under that Act, despite the repeal of that Act; and

(b) "investigation" and "inquest" includes an investigation or an inquest (as the case requires)—

(i) under the Coroners Act 1958 despite the repeal of that Act; and

(ii) under the Coroners Act 1985 despite the repeal of that Act.



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(4) If the Coroners Court under subsection (2)(b) sets aside findings and re-opens an investigation referred to in subsection (3), the investigation is to be conducted as an investigation under this Act.

(5) Unless the specified circumstances in subsection (6) apply, a person must not apply to the Coroners Court under subsection (1) if an application based on the same, or substantially the same, grounds or evidence had been made and—

(a) in the case of an application to the Supreme Court under section 10 of the Coroners Act 1958, the Supreme Court refused to make an order under section 10 of that Act in relation to that application; or

(b) in the case of an application to the Supreme Court under section 59 of the Coroners Act 1985, the Supreme Court refused to make an order under section 59 of that Act in relation to that application; or

(c) in the case of an application to the State Coroner (within the meaning of the Coroners Act 1985) under section 59A of that Act, the State Coroner refused to make an order under section 59A of that Act in relation to that application; or

(d) in the case of an application under this section, the Coroners Court refused to make an order in relation to that application.



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(6) For the purpose of subsection (5), the specified circumstances are—

(a) the Supreme Court refused to make an order under section 10 of the Coroners Act 1958 because section 10 of that Act had been repealed at the time the application was made; or

(b) the Supreme Court refused to make an order under section 59 of the Coroners Act 1985 because section 59 of that Act had been repealed at the time the application was made; or

(c) the State Coroner (within the meaning of the Coroners Act 1985) refused or was not able to make an order under section 59A of that Act because section 59A of that Act had been repealed at the time the application was made; or

(d) the Coroners Court refused or was not able to make an order under this section because this section did not apply to findings, investigations or inquests made or determined under the Coroners Act 1958 or the Coroners Act 1985 at the time the application was made.

(7) For the purposes of an application made under this section, the State Coroner must determine which coroner is to constitute the Coroners Court.

10 Appeal in relation to determination that death not a reportable death

In section 78(1) of the Coroners Act 2008, after "determines" insert "under section 16(1) or (1A)".



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11 Appeal against refusal by Coroners Court to re-open investigation

(1) In the heading to section 84 of the Coroners Act 2008, for "coroner" substitute "Coroners Court".

(2) In section 84(2) of the Coroners Act 2008, for "28" substitute "90".

12 Appeal to Supreme Court

After section 87(1) of the Coroners Act 2008 insert—

"(1A) An appeal on a question of law includes an appeal on the grounds that the finding which is appealed is against the evidence and the weight of the evidence to such an extent that no reasonable coroner could have made the finding.".


After section 118 of the Coroners Act 2008 insert—

"118A Review of amendments made by Part 3 of the Justice Legislation Miscellaneous Amendment Act 2018

(1) The Attorney-General must cause a review to be conducted of the operation and effectiveness of the amendments made to this Act by Part 3 of the Justice Legislation Miscellaneous Amendment Act 2018.

(2) The review must be commenced within 3 years after the commencement of Part 3 of that Act.

(3) On receiving the completed review, the Attorney-General must cause a report of the review to be laid before each House



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of Parliament within 14 sitting days of its receipt by the Attorney-General.".

14 Clause 23 of Schedule 1 inserted

After clause 22 of Schedule 1 to the Coroners Act 2008 insert—

"23 Transitional provisions—Justice Legislation Miscellaneous Amendment Act 2018

(1) Sections 4, 16, 17 and 78, as amended by the Justice Legislation Miscellaneous Amendment Act 2018, apply irrespective of when the death to which those sections apply occurred or was reported to a coroner.

(2) Section 76A applies to any decision, whether the decision was made before, on or after the commencement of that section.

(3) Section 77, as amended by the Justice Legislation Miscellaneous Amendment Act 2018, applies to an application made under that section to the Coroners Court—

(a) on and after the commencement of section 9 of that Act; and

(b) before the commencement of section 9 of that Act if the application has not been determined by the Coroners Court before that commencement.

(4) Section 84(2), as amended by the Justice Legislation Miscellaneous Amendment Act 2018, applies to an appeal against a refusal to re-open an investigation under section 77, whether the refusal was made before, on or after the commencement of that amendment.".



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Division 2—Consequential amendment of Births, Deaths and Marriages Registration Act 199615 Notification of cause of death by coroner

In section 38(2) of the Births, Deaths and Marriages Registration Act 1996, for "2008, or" substitute "2008, makes a determination under section 16(1) or (1A) of that Act,".



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Part 4—Amendment of Crimes Act 1958

Division 1—Aboriginal persons in custody16 Definitions

In section 464(2) of the Crimes Act 1958 insert the following definition—

"Aboriginal person means a person who—

(a) is descended from an Aboriginal person or Torres Strait Islander; and

(b) identifies as an Aboriginal person or Torres Strait Islander; and

(c) is accepted as an Aboriginal person or Torres Strait Islander by an Aboriginal or Torres Strait Islander community;".

17 New section 464AAB inserted

After section 464AA of the Crimes Act 1958 insert—

"464AAB Investigating official to ask whether person in custody is an Aboriginal person

If a person is taken into custody, an investigating official must ask the person whether they are an Aboriginal person—

(a) as soon as practicable after the person is taken into custody; and

(b) in any event, before any questioning or investigation under section 464A(2) commences.

Note

Section 464FA requires that the Victorian Aboriginal Legal Service be notified if an Aboriginal person is taken into custody.".



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18 New section 464FA inserted

After section 464F of the Crimes Act 1958 insert—

"464FA Victorian Aboriginal Legal Service to be notified if Aboriginal person taken into custody

(1) If an Aboriginal person is taken into custody, an investigating official must notify VALS—

(a) within one hour of the person being taken into custody; or

(b) if it is not practicable to do so within one hour, as soon as it is practicable to do so.

(2) For the purposes of subsection (1)—

(a) a person may be considered to be an Aboriginal person if the investigating official who took the person into custody is of the opinion that the person is such a person; and

(b) an investigating official, in considering whether a person is an Aboriginal person, must have regard to any statement made by the person (whether or not in response to a question asked by an investigating official) as to whether they are an Aboriginal person.Note

Section 464AAB requires that an investigating official who takes a person into custody must ask the person whether they are an Aboriginal person.



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(3) As soon as practicable after VALS is notified, an investigating official must inform the Aboriginal person of that notification.

(4) In this section—

VALS means the Victorian Aboriginal Legal Service Co-operative Ltd (ABN 45 926 675 900).".

Division 2—Forensic procedure orders19 Registration of orders

(1) In section 464ZGL(2) of the Crimes Act 1958, for "by the person who made it)" substitute "as required under subsection (2A))".

(2) After section 464ZGL(2) of the Crimes Act 1958 insert—

"(2A) The copy of the order must be certified by—

(a) the person who made it; or

(b) if that person is not available, a judicial officer of the participating jurisdiction in which the order was made.".

Division 3—Dangerous driving19A Dangerous driving causing death or serious

injury

After section 319(1A) of the Crimes Act 1958 insert—

"(1B) In a proceeding for an offence against subsection (1) or (1A), it is to be presumed, in the absence of evidence to the contrary, that the accused drove the motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case if the prosecution proves that the



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accused, at the time of the driving, was knowingly or recklessly in contravention of section 18 or 30 of the Road Safety Act 1986.".



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Part 5—Amendment of Criminal Procedure Act 2009

Division 1—Cross-examination of witnesses in certain committal proceedings

20 Section 99 repealed

Section 99 of the Criminal Procedure Act 2009 is repealed.

21 Hearings in a committal proceeding and attendance of accused

(1) In section 100(1)(f) of the Criminal Procedure Act 2009, before "a" insert "subject to subsection (1A),".

(2) After section 100(1) of the Criminal Procedure Act 2009 insert—

"(1A) A committal hearing is not to be held in a committal proceeding to which section 123 applies.Note

Section 123 provides that there is to be no cross-examination in certain sexual offence cases.".

22 Contents of case direction notice

For note 1 at the foot of section 119(c) of the Criminal Procedure Act 2009 substitute—"1 Section 123 provides that there is to be no cross-

examination in certain sexual offence cases.

1A At a committal mention hearing, the Magistrates' Court may grant leave to cross-examine a witness on one or more issues. If the Magistrates' Court grants leave to cross-examine a witness, the court must identify each issue on which the witness may be cross-examined. See section 124(6).".



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23 Late application for leave to cross-examine witness

At the foot of section 120(1) of the Criminal Procedure Act 2009 insert—"Note


24 Section 123 substituted

For section 123 of the Criminal Procedure Act 2009 substitute—

"123 No cross-examination in certain sexual offence cases

Despite anything to the contrary in this Part, the Magistrates' Court must not grant leave to cross-examine a witness in a proceeding that relates (wholly or partly) to a charge for a sexual offence if the complainant was a child or a person with a cognitive impairment when the criminal proceeding commenced.".

25 Leave required to cross-examine other witnesses

(1) After the heading to section 124 of the Criminal Procedure Act 2009 insert—

"(1AA) This section does not apply to a committal proceeding to which section 123 applies.Note


(2) In section 124(1) of the Criminal Procedure Act 2009 omit "(other than a witness referred to in section 123)".



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26 Committal mention hearing

(1) In section 125(1)(c) of the Criminal Procedure Act 2009, before "hear" insert "subject to subsection (1A),".

(2) In section 125(1)(d) of the Criminal Procedure Act 2009, before "fix" insert "subject to subsection (1A),".


"(1A) Subsection (1)(c) and (d) do not apply to a committal mention hearing that is held in a committal proceeding to which section 123 applies.Note


27 Determination of committal proceeding where hand-up brief used

(1) For section 141(1) of the Criminal Procedure Act 2009 substitute—

"(1) After the evidence for the prosecution is concluded, the Magistrates' Court must enquire—

(a) except in a committal proceeding to which section 123 applies, whether the accused intends to call any witness; andNote

Section 123 provides that there is to be no cross-examination in certain sexual offence cases.

(b) whether the accused intends to make any submission.".



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(2) In section 141(2) of the Criminal Procedure Act 2009—

(a) for "must inform the accused, in a manner likely to be understood by the accused, that—" substitute "must—";

(b) in paragraph (a), for "the accused has the right" substitute "inform the accused that the accused has the right";

(c) for paragraph (b) substitute—

"(b) except in a committal proceeding to which section 123 applies, inform the accused that whatever choice referred to in paragraph (a) is made, the accused may call any witnesses to give sworn or affirmed evidence for the accused.".


"(2A) The Magistrates' Court is required to give information referred to in subsection (2) in a manner likely to be understood by the accused.".

Division 2—Pre-trial examination and cross-examination of witnesses

28 Part 4.11 repealed

Part 4.11 of the Criminal Procedure Act 2009 is repealed.

29 New Division heading inserted

After section 197 of the Criminal Procedure Act 2009 insert—

"Division 3A—Pre-trial taking of evidence and cross-examination".



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30 Order for taking evidence from a witness before trial

(1) In section 198(1) of the Criminal Procedure Act 2009, after "order" insert "under this section".

(2) Section 198(2)(a) and (b) of the Criminal Procedure Act 2009 are repealed.

31 New sections 198A, 198B and 198C inserted


"198A Order for accused to cross-examine witness before trial in certain sexual offence cases

(1) This section applies to a criminal proceeding to which section 123 applies.

(2) At any time except during trial, an accused may apply to the court for an order under this section that the accused cross-examine a witness other than a complainant at a time and place fixed by the court.

(3) An application under subsection (2) must state—

(a) each issue for which leave to cross-examine is sought; and

(b) the reason why the evidence of the witness is relevant to the issue; and

(c) the reason why cross-examination of the person on the issue is justified.



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(4) The court must not make the order sought in the application unless the court is satisfied that—

(a) the accused has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue; and

(b) cross-examination of the witness on that issue is justified.

(5) In determining whether cross-examination is justified, the court—

(a) must have regard to the need to ensure the matters set out in section 124(4); and

(b) may have regard to whether the prosecution consents to or opposes the order being made.

(6) In addition, if the witness is under 18 years of age, the court must have regard to the matters set out in section 124(5).

(7) If the court makes the order sought in the application, the court must identify each issue on which the witness may be cross-examined.

198B Order for accused to conduct limited preparatory cross-examination

(1) An accused may apply to the court for an order under this section that the accused cross-examine a witness at a time and place fixed by the court.



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(2) An application under subsection (1) must state—

(a) the issue to which the proposed questioning relates; and

(b) the purpose of the proposed questioning.

(3) The court must not make the order sought in the application unless the court is satisfied that it is necessary to do so in order to avoid a serious risk that the trial would be unfair.

(4) In determining whether it is necessary to make the order sought in the application in order to avoid a serious risk that the trial would be unfair, the court must have regard to—

(a) the purposes of a committal proceeding as set out in section 97; and

(b) the limitations that apply in relation to cross-examination of a witness at a committal hearing.

(5) If the court makes the order sought in the application, the prosecution may re-examine a witness who is cross-examined in accordance with the order.

(6) This section applies—

(a) before trial; and

(b) during trial.

(7) During trial—

(a) an application for an order under this section must be heard in the absence of the jury; and



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(b) any cross-examination or re-examination in accordance with an order under this section, must be conducted in the absence of the jury.

198C Abolition of Basha procedure

The common law procedure of an accused cross-examining a witness to enable the accused to adequately prepare and present a defence is abolished.Note

This provision abolishes the procedure of holding a hearing of the kind attributed to R v Basha (1989) 39 A Crim R 337.".

Division 3—Admission of recorded evidence in sexual offence cases

32 Admission of recording of evidence of complainant

(1) After the heading to section 381 of the Criminal Procedure Act 2009 insert—

"(1AA) Subject to this section, the court may admit a recording of the evidence of the complainant.

(1AAB) There is a presumption in favour of admitting the recording.".

(2) In section 381(1) of the Criminal Procedure Act 2009—

(a) for "The court may admit a recording of the evidence of the complainant if it is in the interests of justice to do so," substitute "The presumption in favour of admitting the recording is rebutted if the court considers that it is in the interests of justice that the recording not be admitted,";

(b) paragraph (c) is repealed;



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(c) in paragraph (e), before "any" insert "subject to subsection (1A),".


"(1A) The availability or willingness of the complainant to give further evidence is irrelevant to the question of whether it is in the interests of justice not to admit the recording.".

Division 4—Presence of witnesses in courtroom33 Victim who is a witness entitled to be present in

court

Section 336A(2) of the Criminal Procedure Act 2009 is repealed.

Division 5—Indictable offences that may be heard and determined summarily

34 Indictable offences that may be heard and determined summarily

In Schedule 2 to the Criminal Procedure Act 2009, for item 4.1 substitute—

"4.1 Offences under section 17 of the Crimes Act 1958 (causing serious injury recklessly), except an offence alleged to have been committed against an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty within the meaning of section 10AA of the Sentencing Act 1991.".



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Division 6—DPP's right of appeal35 DPP's right of appeal—failure to fulfil undertaking

After section 260(2) of the Criminal Procedure Act 2009 insert—

"(3) The DPP must not bring a further appeal against a sentence imposed by the County Court or the Trial Division of the Supreme Court, as the case requires.".

36 New sections 290A, 290B, 290C and 290D inserted


"290A Right of appeal against certain sentences imposed by County Court or Supreme Court on appeal from Magistrates' Court

(1) This section applies to a sentence imposed under section 256 on an appeal under section 254 where the County Court or the Trial Division of the Supreme Court, as the case requires, made a finding—

(a) under section 5(2H)(a), (b), (c), (d) or (e) of the Sentencing Act 1991; or

(b) under section 10A of that Act that a special reason exists.

(2) The DPP may appeal to the Court of Appeal against a sentence referred to in subsection (1) if the DPP—

(a) considers that there is an error in the sentence imposed and that a different sentence should be imposed; and

(b) is satisfied that an appeal should be brought in the public interest.



27

290B How appeal is commenced

(1) An appeal under section 290A is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the sentence is imposed or any extension of that period granted under section 313.

(2) A notice of appeal under subsection (1) must be signed by the DPP personally.

(3) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 within 7 days after the day on which the notice of appeal is filed.

(4) The DPP must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the criminal proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.

290C Determination of Crown appeal under section 290A

(1) On an appeal under section 290A, the Court of Appeal must allow the appeal if the DPP satisfies the court that—

(a) there is an error in the sentence imposed by the County Court or the Trial Division of the Supreme Court; and

(b) a different sentence should be imposed.

(2) In considering whether an appeal should be allowed, the Court of Appeal must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed.



28

(3) In any other case, the Court of Appeal must dismiss an appeal under section 290A.

290D Orders etc. on successful appeal

(1) If the Court of Appeal allows an appeal under section 290A, it must set aside the sentence imposed by the County Court or the Trial Division of the Supreme Court and impose the sentence, whether more or less severe, that it considers appropriate.

(2) If the Court of Appeal imposes a sentence under subsection (1), it may make any other order that it considers ought to be made.

(3) In imposing a sentence under subsection (1), the Court of Appeal must not take into account the element of double jeopardy involved in the respondent being sentenced again, in order to impose a less severe sentence than the court would otherwise consider appropriate.".

37 New evidence—effect on sentence

After section 321(3) of the Criminal Procedure Act 2009 insert—

"(4) On an appeal under section 290A, the Court of Appeal may increase a sentence, by reason of any evidence that was not given in the hearing of an appeal under section 254 (an initial appeal), if the court considers that—

(a) the County Court or the Trial Division of the Supreme Court, as the case requires, was misled in the initial appeal as to a material fact; and

(b) an increase in sentence is necessary in the interests of justice.".



29

38 Ancillary orders

(1) In the heading to section 325 of the Criminal Procedure Act 2009 omit "of originating court".

(2) In section 325(1) of the Criminal Procedure Act 2009, in the definition of ancillary order, after "proceeding" insert "or the County Court or the Trial Division of the Supreme Court on an appeal under section 254, as the case requires".

39 Consequential amendment—Appeal Costs Act 1998

In section 15(1)(a) of the Appeal Costs Act 1998, after "287" insert ", 290A".

Division 7—Transitional provisions and miscellaneous amendments

40 Special hearing for recording evidence

In section 370(1B)(f) of the Criminal Procedure Act 2009, for "witness" substitute "complainant".

41 Statute law revision

In the heading to section 449 of the Criminal Procedure Act 2009, for "449" substitute "452".

42 Section 449 inserted


"449 Transitional provision—Justice Legislation Miscellaneous Amendment Act 2018

(1) In this section—

amending Act means the Justice Legislation Miscellaneous Amendment Act 2018.



30

(2) An amendment made to this Act by a provision of Division 1 of Part 5 of the amending Act applies to a criminal proceeding that commences on or after the day on which that provision comes into operation.

(3) An amendment made to this Act by a provision of Division 2 of Part 5 of the amending Act applies to a criminal proceeding in which an indictment is filed on or after the day on which that provision comes into operation.

(4) An amendment made to this Act by a provision of Division 3 of Part 5 of the amending Act applies to—

(a) a trial that commences on or after the day on which that provision comes into operation; and

(b) a summary hearing held on or after the day on which that provision comes into operation.

(5) This Act as amended by section 34 of the amending Act applies to a criminal proceeding on and from the commencement of section 34 of that Act, irrespective of when the criminal proceeding commenced.

(6) For the purposes of subsection (5), if the Magistrates' Court has commenced but not determined a summary hearing for an indictable offence before the commencement of section 34 of the amending Act, on that commencement the Magistrates' Court must—

(a) discontinue the summary hearing; and



31

(b) transfer the criminal proceeding to the Supreme Court or the County Court.

(7) This Act as amended by Division 6 of Part 5 of the amending Act applies to a criminal proceeding in which the plea to the charge is entered in the Magistrates' Court after the commencement of that Division.".



32


43 New section 45BA inserted

After section 45B of the Domestic Building Contracts Act 1995 insert—

"45BA Withdrawal of referral

(1) A referring party may withdraw a referral under section 45 by giving written notice to the chief dispute resolution officer at any time before a conciliation officer makes a recommendation under section 45C(1) in respect of that referral.

(2) The chief dispute resolution officer must give written notice to any party to a referred dispute of a withdrawal under this section.".

44 Acceptance or rejection of referral

Section 45C(3)(a), (b) and (e) of the Domestic Building Contracts Act 1995 are repealed.

45 Notice of decision

(1) In section 45E(1) of the Domestic Building Contracts Act 1995, for "each party to a referred dispute" substitute "accept a referral, or any matter referred, to each party to the referred dispute".

(2) Section 45E(3) of the Domestic Building Contracts Act 1995 is repealed.

46 Certificate of conciliation—dispute not suitable for conciliation

(1) Section 45F(2) of the Domestic Building Contracts Act 1995 is repealed.

(2) In section 45F(4) of the Domestic Building Contracts Act 1995 omit "copy of the".



33

47 Withdrawal of referral or matter referred

In section 45G(1) of the Domestic Building Contracts Act 1995, for "party who referred a domestic building work dispute to the chief dispute resolution officer" substitute "referring party whose referral, or any matter referred, is accepted under section 45C or 45D".

48 Notice if dispute not resolved by conciliation

For section 46D(3)(b) of the Domestic Building Contracts Act 1995 substitute—

"(b) if, in the chief dispute resolution officer's opinion an identified party did not participate in the conciliation or did not participate in good faith, a statement of that opinion.".

49 Report if building work defective or incomplete

For section 48Q(2)(a) of the Domestic Building Contracts Act 1995 substitute—

"(a) specify the building work that is defective or incomplete; and".

50 Notice to insurer

After section 49F(2) of the Domestic Building Contracts Act 1995 insert—

"(3) For the purposes of subsection (1)(b), the chief dispute resolution officer may determine that the builder has complied with the dispute resolution order if—

(a) the builder has not given notice of rectified or completed domestic building work under section 49P before the time for the builder to comply with the dispute resolution order has expired; or



34

(b) the building owner has not given notice of a failure to rectify defective domestic building word under section 49R before the time for the builder to comply with the dispute resolution order has expired.

(4) If the chief dispute resolution officer determines the builder's compliance with the dispute resolution order in accordance with subsection (3), the chief dispute resolution officer must include in the notice a statement of that determination.".

51 Certificate of conciliation required to bring proceeding in VCAT to resolve domestic building work dispute

After section 56(3) of the Domestic Building Contracts Act 1995 insert—

"(4) This section does not affect the validity of any decision made by VCAT any time before, on or after the commencement of Part 6 of the Justice Legislation Miscellaneous Amendment Act 2018.".

52 Publication of directions

For section 122 of the Domestic Building Contracts Act 1995 substitute—

"122 Publication of directions

(1) The Director must publish on an Internet site specified in subsection (2)—

(a) any details which the Director requires under this Act to be provided in a domestic building contract; and

(b) the approved form of any document or provision which is required under this Act to be in a form approved by the Director.



35

(2) For the purposes of subsection (1), the following are specified—

(a) in relation to any matter arising under Part 4, Domestic Building Dispute Resolution Victoria's Internet site;

(b) in relation to any other matter arising under the Act, the Consumer Affairs Victoria Internet site.".



36

Part 7—Amendment of Estate Agents Act 1980

Division 1—Rebate statements53 Offence not to give certain information about

commission

After section 49A(5) of the Estate Agents Act 1980 insert—

"(6) An estate agent whose rebate statement contained in an engagement or appointment is in a form approved by the Director does not fail to comply with subsection (4) merely because the rebate statement does not contain—

(a) the statement referred to in subsection (4)(a); or

(b) the statement referred to in subsection (4)(c).

(7) Subsection (6) applies only to a rebate statement contained in an engagement or appointment entered into before the day after the day on which the Justice Legislation Miscellaneous Amendment Act 2018 receives the Royal Assent.Note

See Division 3 of Part IX.".



37

54 New Division 3 of Part IX inserted

After Division 2 of Part IX of the Estate Agents Act 1980 insert—

"Division 3—Justice Legislation Miscellaneous Amendment Act 2018

104 Rebate statements

(1) Section 49A as amended by the Justice Legislation Miscellaneous Amendment Act 2018 applies to, and is taken to have always applied to, the engagement or appointment of an estate agent in respect of work done by, or on behalf of, the agent or in respect of any outgoings incurred by the agent.

(2) Despite subsection (1), the amendment of section 49A by the Justice Legislation Miscellaneous Amendment Act 2018 does not affect the rights of the parties in the proceeding known as Advisory Services Pty Ltd (trading as Ray White St Albans) v Augustin & Anor [2018] VSCA 95 in the Supreme Court.

(3) Despite section 14(2) of the Interpretation of Legislation Act 1984, subsection (1) applies to any other proceeding commenced before 9 June 2018 which concerns the validity of a rebate statement contained in an engagement or appointment of an estate agent because the rebate statement does not contain—

(a) the statement referred to in section 49A(4)(a); or

(b) the statement referred to in section 49A(4)(c).".



38

Division 2—Miscellaneous55 Definitions

In section 4(1) of the Estate Agents Act 1980, the definition of prescribed is repealed.

56 Secretary's power to enter into arrangements with financial institutions

In section 60(2) of the Estate Agents Act 1980, for "matters:" substitute "matters—".



39

Part 8—Amendment of Evidence Act 200857 Improper questions

(1) In section 41(1) of the Evidence Act 2008, for "may" substitute "must".

(2) Section 41(2) and (4) of the Evidence Act 2008 are repealed.



40

Part 9—Amendment of Family Violence Protection Act 2008

58 Procedural requirements for person directed to a police station, or person apprehended and detained

(1) In section 17(7A) of the Family Violence Protection Act 2008, for "or curfew condition" substitute ", a place or area exclusion condition or a curfew condition".

(2) For section 17(7B) of the Family Violence Protection Act 2008 substitute—

"(7B) In subsection (7A), curfew condition, place or area exclusion condition and residence restriction or exclusion condition have the same meaning as in the Sentencing Act 1991.".

59 Relationship with certain orders under the Sentencing Act 1991

In section 175A of the Family Violence Protection Act 2008—

(a) in subsections (1) and (1A), after "exclusion condition" insert ", a place or area exclusion condition";

(b) in subsection (2), after "curfew condition" insert ", place or area exclusion condition".



41

60 New Division 12 inserted in Part 14

After Division 11 of Part 14 of the Family Violence Protection Act 2008 insert—


232 Transitional provision—Justice Legislation Miscellaneous Amendment Act 2018

This Act as amended by section 59 of the Justice Legislation Miscellaneous Amendment Act 2018 applies to a family violence intervention order or a recognised DVO that has effect on or after the commencement of section 59 of that Act, irrespective of when the order was made.".



42

Part 10—Amendment of Honorary Justices Act 2014

61 Permission for retired person to use title

Section 40(2) of the Honorary Justices Act 2014 is repealed.


After section 40 of the Honorary Justices Act 2014 insert—

"40A Use of retirement titles by persons who retired before this Act commenced

(1) Section 40 applies to a person who held, and had ceased to hold, the office of bail justice before 1 September 2014 in the same way that it applies to a bail justice—

(a) appointed under section 14; or

(b) re-appointed under section 15; or

(c) who holds a prescribed office under section 18.

(2) Section 40 applies to a person who held, and had ceased to hold, the office of justice of the peace before 1 September 2014 in the same way that it applies to a justice of the peace appointed under section 7.

(3) For the purposes of subsections (1) and (2), a reference in section 40 to the office of, or service as, a bail justice or justice of the peace is taken to include a reference to that office or service before 1 September 2014.".



43

Part 11—Amendment of Personal Safety Intervention Orders Act 2010

63 Relationship with certain orders under the Sentencing Act 1991

In section 130A of the Personal Safety Intervention Orders Act 2010—

(a) in subsection (1), after "exclusion condition" insert ", a place or area exclusion condition";

(b) in subsection (2), after "curfew condition" insert ", place or area exclusion condition".

64 New Division 4 inserted in Part 13

After Division 3 of Part 13 of the Personal Safety Intervention Orders Act 2010 insert—


198 Transitional provision—Justice Legislation Miscellaneous Amendment Act 2018

Section 130A as amended by section 63 of the Justice Legislation Miscellaneous Amendment Act 2018 applies to a personal safety intervention order that has effect on or after the commencement of section 63 of that Act, irrespective of when the order was made.".



44

Part 12—Amendment of Retirement Villages Act 1986

65 Regulations

After section 43(2)(b) of the Retirement Villages Act 1986 insert—

"(ba) may apply to different classes of persons; and

(bb) may prescribe different infringement penalties for different classes of persons; and".



45

Part 13—Amendment of Rooming House Operators Act 2016

66 Definitions

(1) In section 3(1) of the Rooming House Operators Act 2016, in the definition of body corporate, after paragraph (b) insert—

"(ba) an incorporated association established under an Act of another State or a Territory; or".

(2) In section 3(1) of the Rooming House Operators Act 2016, for the definition of rooming house provisions substitute—

"rooming house provisions means any provisions of the Residential Tenancies Act 1997 to the extent to which they apply to a room, a rooming house, a resident or tenant of a room in a rooming house, a rooming house owner, or a rooming house mortgagee within the meaning of that Act.".

67 Offence to operate a rooming house without a licence

(1) For the heading to section 7 of the Rooming House Operators Act 2016 substitute—

"Offence to operate a rooming house without a licence".

(2) For section 7(1) of the Rooming House Operators Act 2016 substitute—

"(1) A person other than a registered housing association or registered housing provider must not conduct the business of operating a rooming house without a licence.



46

Penalty: In the case of a natural person, 240 penalty units or imprisonment for 2 years.

In the case of a body corporate, 1200 penalty units.".

(3) After section 7(2) of the Rooming House Operators Act 2016 insert—

"(3) In this section—

registered housing association has the same meaning as in the Housing Act 1983;

registered housing provider has the same meaning as in the Housing Act 1983.".

68 Application for licence—licence disqualification criteria

(1) In section 17(1)(j) of the Rooming House Operators Act 2016, for "years." substitute "years;".

(2) After section 17(1)(j) of the Rooming House Operators Act 2016 insert—

"(k) in the case of an applicant who is a natural person, within the preceding 5 years that person was an officer of a body corporate at the time that the body corporate—

(i) committed an offence referred to in paragraph (f) for which the body corporate was later convicted or found guilty; or

(ii) contravened a provision referred to in paragraph (g) or (h) in relation to which the body corporate was later the subject of an order referred to in either of those paragraphs;



47

(l) in the case of an applicant who is a natural person, that person was an officer of a body corporate whose licence was cancelled within the preceding 5 years.".

69 Application for renewal of licence—renewal disqualification criteria

(1) In section 18(1)(g) of the Rooming House Operators Act 2016, for "cancelled." substitute "cancelled;".

(2) After section 18(1)(g) of the Rooming House Operators Act 2016 insert—

"(h) in the case of an applicant who is a natural person, during the period to which the licence relates, the person was an officer of a body corporate at the time that the body corporate—

(i) committed an offence referred to in paragraph (d) for which the body corporate was later convicted or found guilty; or

(ii) contravened a provision referred to in paragraph (e) in relation to which the body corporate was later the subject of an order referred to in that paragraph;

(i) in the case of an applicant who is a natural person, during the period to which the licence relates, that person was an officer of a body corporate whose licence was cancelled.".

70 Disciplinary powers of VCAT—orders

For section 33(1)(b) of the Rooming House Operators Act 2016 substitute—

"(b) an order under this section to do anything described in an order referred to in section 34(3).".



48

71 Entry without consent or warrant

(1) In section 58(1)(c) of the Rooming House Operators Act 2016, for "premises." substitute "premises;".

(2) After section 58(1)(c) of the Rooming House Operators Act 2016 insert—

"(d) make any still or moving image, audio recording or audio-visual recording.".


After section 79 of the Rooming House Operators Act 2016 insert—

"79A Licensing Registrar may waive or reduce fees

The Licensing Registrar may waive or reduce fees in a particular case or class of cases.".



49

Part 14—Amendment of Sentencing Act 1991 and consequential amendments

Division 1—Sentencing Act 199173 Definitions—category 1 offences

(1) In section 3(1) of the Sentencing Act 1991, in the definition of category 1 offence—

(a) after paragraph (c) insert—

"(ca) an offence against section 16 of the Crimes Act 1958 (causing serious injury intentionally) if—

(i) the victim was an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty within the meaning of section 10AA(8), (9), (10) and (11); and

(ii) the offender knew or was reckless as to whether the victim was a person referred to in subparagraph (i);

(cb) an offence against section 17 of the Crimes Act 1958 (causing serious injury recklessly) if—


(ii) the offender knew or was reckless as to whether the



50

victim was a person referred to in subparagraph (i);

(cc) an offence against section 18 of the Crimes Act 1958 (causing injury intentionally or recklessly) if—


(ii) the offender knew or was reckless as to whether the victim was a person referred to in subparagraph (i);";

(b) after paragraph (i) insert—

"(ia) an offence against section 77B(2) of the Crimes Act 1958 (aggravated home invasion);

(ib) an offence against section 79A(2) of the Crimes Act 1958 (aggravated carjacking);

(ic) an offence against section 317AC of the Crimes Act 1958 (intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving) 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 within the meaning of section 317AB is injured;

(id) an offence against section 317AD of the Crimes Act 1958 (aggravated offence of intentionally exposing an



51

emergency worker, a custodial officer or a youth justice custodial worker to risk by driving) 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 within the meaning of section 317AB is injured;".

(2) In section 3(1) of the Sentencing Act 1991, in the definition of category 1 offence, after paragraph (k) insert—

"(l) an offence against any of the following provisions of the Crimes Act 1958 as in force before their repeal by section 16 of the Crimes Amendment (Sexual Offences) Act 2016—

(i) section 44(1) (incest with the person's child, other lineal descendant or step-child) if the victim was, at the time of the offence, under the age of 18;

(ii) section 44(2) (incest with a child, other lineal descendant or step-child under the age of 18 of the person's de facto spouse);

(iii) section 45(1) (sexual penetration of child under the age of 16) committed in the circumstance of aggravation described in section 45(2)(a) of the Crimes Act 1958 as then in force;

(iv) section 47A(1) (persistent sexual abuse of child under the age of 16);".

74 Definitions—category 2 offences

In section 3(1) of the Sentencing Act 1991, in the definition of category 2 offence—



52

(a) in paragraph (c), after "intentionally)" insert "other than a category 1 offence";

(b) for paragraph (j) substitute—

"(j) an offence against section 317AD of the Crimes Act 1958 (aggravated offence of intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving) other than a category 1 offence;";

(c) in paragraph (k), after "1958" insert "(aggravated offence of recklessly exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving)";

(d) after paragraph (d) insert—

"(da) an offence against section 75A(2) of the Crimes Act 1958 (armed robbery) if—

(i) the offender has with him or her a firearm at the time of the offence; or

(ii) a victim of the offence has suffered injury as a direct result of the offence; or

(iii) the offence was committed by the offender in company with one or more other persons;

(db) an offence against section 77A(3) of the Crimes Act 1958 (home invasion);

(dc) an offence against section 79(2) of the Crimes Act 1958 (carjacking);";

(e) after paragraph (e) insert—



53

"(ea) an offence against section 318(1) of the Crimes Act 1958 (culpable driving causing death);

(eb) an offence against section 319(1) of the Crimes Act 1958 (dangerous driving causing death);".

75 Definitions inserted

In section 3(1) of the Sentencing Act 1991 insert the following definitions—

"mandatory treatment and monitoring order means an order made under section 44A;

psychiatrist means a person who is registered under the Health Practitioner Regulation National Law as a medical practitioner in the speciality of psychiatry (other than as a student);

registered psychologist means a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student);".

76 Sentencing guidelines

(1) In section 5(2G) of the Sentencing Act 1991, for "In sentencing" substitute "Subject to subsection (2GA), in sentencing".

(2) After section 5(2G) of the Sentencing Act 1991 insert—

"(2GA) In sentencing an offender for an offence referred to in paragraph (ca), (cb), (cc), (ic) or (id) of the definition of category 1 offence where the court has found under section 10A that a special reason exists, a court must make either—

(a) an order referred to in subsection (2G); or



54

(b) a mandatory treatment and monitoring order (whether or not a sentence of imprisonment is imposed under section 44), a residential treatment order or a Court Secure Treatment Order if—

(i) the offender proves on the balance of probabilities that, at the time of the commission of the offence, the offender had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; and

(ii) the court is satisfied that a mandatory treatment and monitoring order, a residential treatment order or a Court Secure Treatment Order, as the case requires, is appropriate.

(2GB) Before making an order under subsection (2GA) a court must—

(a) have received a report addressing the matters in subsection (2GA)(b)(i) by a psychiatrist or a registered psychologist who has examined the offender in relation to the offending; and

(b) have regard to that report and any other evidence that the court considers relevant.

(2GC) Subsection (2GA) does not apply to impaired mental functioning caused



55

solely by self-induced intoxication.".

(3) Section 5(2H)(b) of the Sentencing Act 1991 is repealed.

(4) In section 5(2H)(c)(i) of the Sentencing Act 1991, before "at" insert "subject to subsection (2HA),".

(5) In section 5(2H)(c)(ii) of the Sentencing Act 1991, for "significantly more" substitute "substantially and materially greater".

(6) In section 5(2H)(e) of the Sentencing Act 1991, after "circumstances" insert "that are exceptional and rare and".

(7) After section 5(2H) of the Sentencing Act 1991 insert—

"(2HA) Subsection (2H)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication.

(2HB) In subsections (2GA), (2GC), (2H) and (2HA)—

impaired mental functioning has the same meaning as in section 10A;

self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.".

(8) Before section 5(2I) of the Sentencing Act 1991 insert—

"(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and



56

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to—

(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences.".

(9) After section 5(2I) of the Sentencing Act 1991 insert—

"(2J) In sentencing a young offender aged 16 years or more but under 18 years at the time of the commission of an indictable offence, the Supreme Court or the County Court must have regard to any requirement in this Act that a specified minimum non-parole period of imprisonment be fixed or a specified minimum term of imprisonment be imposed, had the offence been committed by an adult.".

(10) In section 5(3), (4), (4B) and (4C) of the Sentencing Act 1991, after "(2G)" insert ", (2GA)".

77 Definition of serious sexual offender

In section 6B(2) of the Sentencing Act 1991, in paragraph (ab) of the definition of serious sexual offender, after "clause 1(a)(viii)" insert "or 1(dab)(iii)".



57

78 Assaulting, etc. emergency workers, custodial officers and youth justice custodial workers on duty

(1) For the heading to section 10AA of the Sentencing Act 1991 substitute—

"Custodial sentence for certain offences against emergency workers, custodial officers and youth justice custodial workers on duty".

(2) In section 10AA(2) of the Sentencing Act 1991—

(a) after "subsection (1)" insert "or impose a term of imprisonment in accordance with subsection (4)";

(b) for "to impose such a term and fix such a period" substitute "to do so";

(c) in Table 2, after the entry relating to Section 17 insert—

"Section 18 6 months".

(3) In section 10AA(8) of the Sentencing Act 1991, for paragraph (i) of the definition of emergency worker substitute—

"(i) a person with emergency response duties employed in the Department of Environment, Land, Water and Planning or the Department of Economic Development, Jobs, Transport and Resources; or".

79 Special reasons relevant to imposing minimum non-parole periods

(1) In section 10A(1) of the Sentencing Act 1991—

(a) in paragraph (e) of the definition of impaired mental functioning, for "dementia." substitute "dementia;";



58

(b) insert the following definition—

"self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.".

(2) Section 10A(2)(b) of the Sentencing Act 1991 is repealed.

(3) In section 10A(2)(c)(i) of the Sentencing Act 1991, before "at" insert "subject to subsection (2A),".

(4) In section 10A(2)(c)(ii) of the Sentencing Act 1991, for "significantly more" substitute "substantially and materially greater".

(5) In section 10A(2)(e) of the Sentencing Act 1991, after "circumstances" insert "that are exceptional and rare and".

(6) For section 10A(2A) of the Sentencing Act 1991 substitute—

"(2A) Subsection (2)(c)(i) does not apply to impaired mental functioning caused solely by self-induced intoxication.".

(7) Before section 10A(3) of the Sentencing Act 1991 insert—

"(2B) In determining whether there are substantial and compelling circumstances under subsection (2)(e), the court—

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to



59

other matters such as the nature and gravity of the offence; and

(c) must not have regard to—

(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences.".


After section 44 of the Sentencing Act 1991 insert—

"44A Mandatory treatment and monitoring order

(1) If a court is sentencing an offender in respect of an offence referred to in section 5(2GA) and the court is satisfied under that subsection that an order under this section is appropriate, the court must make a community correction order with the following mandatory conditions attached—

(a) a judicial monitoring condition;

(b) either—

(i) a treatment and rehabilitation condition; or

(ii) a justice plan condition.

(2) This section does not limit the conditions which a court may attach to a community correction order made under this section.

(3) Despite any other provision of this Part, a condition referred to in subsection (1)(a)



60

or (b) must not be—

(a) varied unless the condition as varied is as onerous as, or more onerous than, the previous condition; or

(b) cancelled.

(4) Section 43 does not apply to a community correction order made under this section.

(5) This section does not limit section 44.".

81 Powers of the court on finding of guilt for contravention of community correction order

(1) In section 83AS(1) of the Sentencing Act 1991, for "If a court" substitute "Subject to subsection (1A), if a court".

(2) After section 83AS(1) of the Sentencing Act 1991 insert—

"(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



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(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.".

82 New section 115F inserted

After section 115E of the Sentencing Act 1991 insert—

"115F Reports

(1) The Director of Public Prosecutions and the Chief Commissioner of Police must each give to the Attorney-General a report on the operation of mandatory treatment and monitoring orders that includes the following information in respect of each financial year—

(a) the number of mandatory treatment and monitoring orders made;

(b) the number of offences under section 83AD that were constituted by a contravention of a mandatory treatment and monitoring order and details of the orders made under section 83AS in respect of those contraventions.

(2) The report must be given to the Attorney-General as soon as practicable but within 3 months after the end of each financial year.".



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83 New section 168 inserted

At the end of Part 12 of the Sentencing Act 1991 insert—

"168 Transitional provisions—Justice Legislation Miscellaneous Amendment Act 2018

(1) The amendments made to the definition of category 1 offence in section 3(1) by section 73(1) of the Justice Legislation Miscellaneous Amendment Act 2018 apply to the sentencing of an offender for an offence alleged to have been committed after the commencement of section 73(1) of that Act.

(2) For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of section 73(1) of the Justice Legislation Miscellaneous Amendment Act 2018, the offence is alleged to have been committed before that commencement.

(3) The amendments made to the definition of category 1 offence in section 3(1) by section 73(2) of the Justice Legislation Miscellaneous Amendment Act 2018 apply to the sentencing of an offender after the commencement of section 73(2) of that Act for an offence alleged to have been committed on or after 20 March 2017.

(4) The amendments made to the definition of category 2 offence in section 3(1) by section 74(d) and (e) of the Justice Legislation Miscellaneous Amendment Act 2018 apply to the sentencing of an offender for an offence alleged to have been



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committed after the commencement of section 74(d) and (e) of that Act.

(5) For the purposes of subsection (4), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of section 74(d) and (e) of the Justice Legislation Miscellaneous Amendment Act 2018, the offence is alleged to have been committed before that commencement.

(6) The amendments made to this Act by section 78(2) or a provision of section 76 (other than section 76(1) and (2)) or 79 of the Justice Legislation Miscellaneous Amendment Act 2018 apply to the sentencing of an offender for an offence alleged to have been committed after the commencement of that provision of that Act.

(7) For the purposes of subsection (6), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of a provision referred to in subsection (6), the offence is alleged to have been committed before that commencement.

(8) The amendment made to the definition of serious sexual offender in section 6B(2) by section 77 of the Justice Legislation Miscellaneous Amendment Act 2018 applies to the sentencing of an offender after the commencement of section 77 of that Act, irrespective of when the offence was committed.

(9) The amendments made to this Act by sections 76(1) and (2), 80, 81 and 82 of the Justice Legislation Miscellaneous Amendment Act 2018 apply to the sentencing of an offender for an offence



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alleged to have been committed after the commencement of those sections of that Act.

(10) For the purposes of subsection (9), if an offence is alleged to have been committed between 2 dates, one before and one after the commencement of sections 76(1) and (2), 80, 81 and 82 of the Justice Legislation Miscellaneous Amendment Act 2018, the offence is alleged to have been committed before that commencement.

(11) For the purposes of this section, a sentence imposed by a court after the setting aside of a sentencing order on appeal must be taken to have been imposed at the time the original sentencing order was made.".

84 Statute law revision

(1) In section 10A(1) of the Sentencing Act 1991, in paragraph (a) of the definition of impaired mental functioning, for "Mental Health Act 1986" substitute "Mental Health Act 2014".

(2) In section 32(1) of the Sentencing Act 1991, for "(2A) (2B)" substitute "(2A), (2B)".

(3) In section 32(2) of the Sentencing Act 1991, after "residential" insert "centre".

Division 2—Consequential amendment of Crimes Act 1958

85 Causing serious injury intentionally

In the notes at the foot of section 16 of the Crimes Act 1958—

(a) before note 1 insert—"1AA An offence against this section is a

category 1 offence under the Sentencing Act 1991 if the victim was an emergency worker on duty, a custodial officer on duty or



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a youth justice custodial worker on duty and the offender knew or was reckless as to whether the victim was such a person. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";

(b) in note 1, after "offence against this section" insert "(other than an offence referred to in note 1AA)";

(c) in note 4, for "section 5(2H)" substitute "section 5(2G) and (2H)".

86 Causing serious injury recklessly



category 1 offence under the Sentencing Act 1991 if the victim was an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty and the offender knew or was reckless as to whether the victim was such a person. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";

(b) in note 3, after "discretion." insert "See also section 5(2G) of that Act.".

87 Causing injury intentionally or recklessly



category 1 offence under the Sentencing Act 1991 if the victim was an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty and the offender knew or was reckless as to whether the victim was such a person. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";



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88 Armed robbery

At the foot of section 75A of the Crimes Act 1958 insert—"Note

An offence against this section is a category 2 offence under the Sentencing Act 1991 if—

(a) the offender has with him or her a firearm at the time of the offence; or

(b) a victim of the offence has suffered injury as a direct result of the offence; or

(c) the offence was committed by the offender in company with one or more other persons.

See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.".

89 Home invasion

At the foot of section 77A of the Crimes Act 1958 insert—"Note

An offence against this section is a category 2 offence under the Sentencing Act 1991. See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.".

90 Aggravated home invasion

In the notes at the foot of section 77B of the Crimes Act 1958—


category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";



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91 Carjacking

At the foot of section 79 of the Crimes Act 1958 insert—"Note

An offence against this section is a category 2 offence under the Sentencing Act 1991. See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.".

92 Aggravated carjacking

In the notes at the foot of section 79A of the Crimes Act 1958—


category 1 offence under the Sentencing Act 1991. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";


93 Intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving

In the notes at the foot of section 317AC of the Crimes Act 1958—


category 1 offence under the Sentencing Act 1991 if an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty is injured. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";



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94 Aggravated offence of intentionally exposing an emergency worker, a custodial officer or a youth justice custodial worker to risk by driving

In the notes at the foot of section 317AD of the Crimes Act 1958—


category 1 offence under the Sentencing Act 1991 if an emergency worker on duty, a custodial officer on duty or a youth justice custodial worker on duty is injured. See section 5(2G) of that Act for the requirement to impose a custodial order for this offence.";

(b) in note 1, after "offence against this section" insert "(other than an offence referred to in note 1AA)";

(c) in note 3, after "discretion." insert "See also section 5(2G) of that Act.".

95 Culpable driving causing death

At the foot of section 318(1) of the Crimes Act 1958 insert—"Note

An offence against this subsection is a category 2 offence under the Sentencing Act 1991. See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.".



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96 Dangerous driving causing death

At the foot of section 319(1) of the Crimes Act 1958 insert—"Note

An offence against this subsection is a category 2 offence under the Sentencing Act 1991. See section 5(2H) of that Act for the requirement to impose a custodial order for this offence unless the circumstances set out in paragraphs (a) to (e) of that subsection exist.".



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Part 15—Repeal of amending Act97 Repeal of amending Act

This Act is repealed on 1 October 2020.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

By Authority. Government Printer for the State of Victoria.

Endnotes


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http://www.legislation.vic.gov.au/

† 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 make miscellaneous amendments to justice legislation and for other purposes."

justice legislation miscellaneous amendment act 2018file/581350bs1.docx · web...

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