Sentencing Amendment (Correction of Sentencing Error) Act 2015

Sentencing Amendment (Correction of Sentencing Error) Act 2015

No. 19 of 2015

table of provisions

SectionPage

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1Purpose

2Commencement

3Principal Act

4Heading to Part 7 substituted

5Correction of sentences by Supreme Court

6Power to correct clerical mistakes, etc.

7New sections 104B, 104C and 104D inserted

8New section 156A inserted

9Repeal of amending Act

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Endnotes

1General information

ClausePage

Victoria

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Sentencing Amendment (Correction of Sentencing Error) Act 2015[†]

No. 19 of 2015

[Assented to 2 June 2015]

Sentencing Amendment (Correction of Sentencing Error) Act 2015
No. 19 of 2015

The Parliament of Victoriaenacts:

Sentencing Amendment (Correction of Sentencing Error) Act 2015
No. 19 of 2015

1Purpose

The purpose of this Act is to amend the Sentencing Act 1991 to provide further for the correction of sentencing errors.

2Commencement

This Act comes into operation on the day after the day on which it receives the Royal Assent.

3Principal Act

In this Act, the Sentencing Act 1991 is called the Principal Act.

4Heading to Part 7 substituted

For the heading to Part 7 of the Principal Act substitute—

"Part 7—Correction of errors".

5Correction of sentences by Supreme Court

(1)Insert the following heading to section 104 of the Principal Act—

"Correction of sentences by Supreme Court on judicial review".

(2)In section 104(1) of the Principal Act—

(a)in paragraph (a), for "a court (including the Supreme Court)" substitute "the County Court or the Magistrates' Court";

(b) in paragraph (b), for "if the sentencing courtwas the County Court or the Magistrates' Court, application" substitute "an application";

6Power to correct clerical mistakes, etc.

(1)In section 104A(2) of the Principal Act omit "upuntil the end of the fourteenth day after the judgment was given or purportedly given or the sentence was passed or purportedly passed".

(2)After section 104A(5) of the Principal Act insert—

"(5A)In determining an application for leave to appeal against a judgment or sentence or in determining the appeal, the Court of Appeal may direct the amendment of the judgment or sentence to which the application or appeal relates if satisfied of the matters referred to in subsection (1)(a) or (b), whether the application is granted or refused or the appeal is allowed or dismissed.".

7New sections 104B, 104C and 104D inserted

After section 104A of the Principal Act insert—

"104B Court may reopen proceeding to correct penalties imposed contrary to law

(1)This section applies to a criminal proceeding (including an appeal) in which a court has—

(a)imposed a penalty that is contrary to law; or

(b)failed to impose a penalty that is required to be imposed by law.

(2)The court may, at any time, reopen the proceeding on its own motion or on application by a party and, after giving the parties an opportunity to be heard—

(a)may impose a penalty that is in accordance with the law; and

(b)if necessary, may amend any conviction or order.

(3)In determining whether to reopen a proceeding under this section, the court must have regard to the time that has elapsed since the imposition of, or failure to impose, the original penalty.

(4)In determining a new penalty on a reopening of a proceeding in which a court has imposed a penalty, the court must take into account the extent to which the person to whom the proceeding relates has served, paid, complied with or otherwise suffered the consequences of the original penalty.

(5) For the purposes of this section, the court may require the attendance of the person to whom the proceeding relates and, if the person fails to attend, may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend.

(6) For the purposes of this section, a penalty is not contrary to law only because the decision to impose it was reached by a process of erroneous reasoning or factual error.

(7) In this section—

attend means be physically present in court or, if authorised to do so under Division3 of Part IIA of the Evidence (Miscellaneous Provisions) Act 1958, appear or be brought before the court by audio visual link;

impose a penalty includes—

(a)impose a sentence of imprisonment or a fine; and

(b)make any of the following orders under this Act—

(i)an order under section 11 fixing a non-parole period;

(ii)a Court Secure Treatment Order;

(iii)a drug treatment order;

(iv)a residential treatment order;

(v)a youth justice centre order;

(vi)a youth residential centre order; and

(c)make a community correction order or attach a condition to a community correction order; and

(d)adjourn a proceeding under section 72 or 75; and

(e)make a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(f) make an order or direction with respect to restitution, compensation, costs, forfeiture, destruction, disqualification or loss, suspension or variation of a licence or privilege.

104CEffect of reopening a proceeding under section 104B

(1)Except as provided in subsection (2), a penalty imposed on the reopening of a proceeding under section104B is taken to have been imposed at the time the court imposed the original penalty or failed to impose the penalty (as the case requires), unless the court orders otherwise.

(2)The time within which an appeal may be commenced, or leave to appeal sought, against a penalty imposed on the reopening of a proceeding under section104B, or a review of such a penalty may be sought, commences on the day on which the penalty is so imposed.

(3)Nothing in section104B or this section takes away from any right to appeal against, or to seek leave to appeal against or a review of, a sentence that any party to a criminal proceeding otherwise has.

104D When proceedings are finally disposed of

The possibility that a proceeding could be reopened under section 104B is not to be taken into account in establishing, for the purposes of an enactment, whether a proceeding has finally been disposed of.".

8New section 156A inserted

After section 156 of the Principal Act insert—

"156A Transitional provision—Sentencing Amendment (Correction of Sentencing Error) Act 2015

(1) The amendments made to section 104A by section 6 of the amending Act apply to judgments given or purportedly given and sentences passed or purportedly passed before, on or after the commencement of the amending Act.

Note

The amending Act commences on the day after the day on which it receives the Royal Assent—see section 2 of that Act.

(2) Section 104B applies in relation to the imposition of a penalty, or the failure to impose a penalty, before, on or after the commencement of the amending Act.

(3)In this section—

amending Act means the Sentencing Amendment (Correction of Sentencing Error) Act 2015.".

9Repeal of amending Act

This Act is repealed on the first anniversary of its commencement.

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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Endnotes

Sentencing Amendment (Correction of Sentencing Error) Act 2015
No. 19 of 2015

Endnotes

1General information

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

[†] Minister's second reading speech—

Legislative Assembly: 15 April 2015

Legislative Council: 7 May 2015

The long title for the Bill for this Act was "A Bill for an Act to amend the Sentencing Act 1991 to provide further for the correction of sentencing errors and for other purposes."