More from: legislative change

All prisoners to appear by videolink from 12 Sep 16

The Justice Legislation (Evidence and other Acts) Amendment Act 2016 (‘the amending Act’) will come into effect on 12 September 2016. The amending Act will change the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) in relation to appearances of an accused being held in custody.

Section 42JA, covers the appearance of an adult accused before the Court. The legislation introduces a presumption that an accused will appear via an AVL for all hearings with the exception of listings outlined in section 42JA(2) and (3). The exceptions relate to the following hearings:

  • An inquiry into the accused’s fitness to plead;
  • A hearing where the accused is pleading not guilty (i.e. a contest);
  • Committal hearing;
  • First hearing of accused following arrest, when the accused is required to be brought before the Court to be dealt with according to law;
  • Where a Court has directed the physical attendance of the accused in the interests of justice.

The Court’s website has been updated with AVL information about the changes, including:

  • Chief Magistrate Practice Direction 11 of 2016;
  • A practitioners guide to AVL hearings;
  • FAQ’s;
  • New Form 45 – application for physical appearance;
  • New Form 46 – application for appearance by AVL;
  • A list of each court venue’s AVL capacity and timetable for installation; and
  • The daily list of scheduled AVL hearings.

LCA opposes mandatory minimums

The Law Council of Australia will tell a Senate inquiry into the need for a nationally-consistent approach to alcohol-fuelled violence today that mandatory minimum penalties for alcohol-fuelled violence offences should be repealed. The peak body for Australian lawyers emphasised that mandatory sentencing is not effective as a deterrent or consistent with rule of law principles. Here is the LCA media release (15 Apr 16).

New rules reminder

Members will remember that new Legal Profession Uniform Conduct (Barristers) Rules 2015 came into operation on 1 July 2015 and replaced the rules and regulations made under the Legal Profession Act 2004 (that Act was replaced by the Legal Professional Uniform Law (Vic), which also came into operation on 1 July 2015). The “Good Conduct Guide” is now out of date (it is understand a new version will be coming out this year).

New Jury Directions Act seminar (Monday 27 July)


The Jury Directions Act 2015 re-enacts the Jury Directions Act 2013 and introduces further significant changes to the jury directions scheme in Victoria. This session will bring together judicial and academic experts to provide an overview of the Act and outline changes to directions and obligations on lawyers under the Act. The event will include presentations and an expert panel discussion to respond to questions to support lawyers in applying these new provisions.


Monash University Law Chambers
555 Lonsdale Street
Melbourne, Victoria 3000

New Baseline Sentencing Information published by SAC

The Sentencing Advisory Council has published new information on baseline sentencing. For each of the seven baseline offences, the Council has created a table of information that identifies (and provides links to) published cases containing a charge of a baseline offence that has been sentenced on, or around, the median value. The information is available on the Council’s website.

Risk of deportation and sentence

Members may recall that the Court of Appeal in R v Guden [2010] VSCA 196 said that the likely deportation or removal from Australia of an offender can mitigate sentence. Amongst other things, it was necessary to show that the removal / deportation was likely (not just possible).

However, in December 2014, the character provisions of the Migration Act were significantly amended. The amended sections provide (inter alia) for the mandatory cancellation of the visa/s held by a non-citizen who is convicted and sentenced to a term of imprisonment of 12 months or more or who is found guilty of a child based sex offence AND who is in prison at the time of the decision.  There is the right to apply for revocation of the mandatory cancellation, but that then becomes a discretionary decision, which the sentencing court should arguably ignore.


New “sexting” laws

Two new summary offences of “distribution of an intimate image” and “threat to distribute an intimate image” commenced operation on 3 November 2014. The offences apply to the distribution of images of anyone under 18 years of age, and the distribution of images of adults without consent.

The new laws also introduce certain exceptions to child pornography offences so that young people under 18 years of age are not inappropriately prosecuted or added to the sex offenders register for consensual, non-exploitative sexting.

These laws the recommendations of the Victoria Parliamentary Law Reform Committee’s report following its Inquiry into Sexting.

For more information see the attached media release issued by the Attorney-General and the Crimes Amendment (Sexual Offences and Other Matters) Act 2014.

Important legislative changes to CCOs

From 29 September 2014, important legislative changes commenced concerning Community Corrections Orders (CCO). This changes have been made by the Sentencing Amendment (Emergency Workers) Act 2014, some of which commenced operation on 29 September 2014.

go Change to s. 5 of the Sentencing Act 1991 

Section 5(4C) now provides that a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached. Amendment to s. 36 of the Sentencing Act 1991

New section 36(2) provides that without limiting when a community correction order may be imposed, it may be an appropriate sentence where, before the ability of the court to impose a suspended sentence was abolished, the court may have imposed a sentence of imprisonment and then suspended in whole that sentence of imprisonment.

Tadalafil Oral Strip Amendment to s. 44 of the Sentencing Act 1991 re combination of CCO and imprisonment

Section 44 now provides that in the County and Supreme Courts CCOs may be combined with a term of imprisonment of up to two years (following deduction of any pre-sentence detention) for most offences, excluding “arson offences”: s. 44(1) Sentencing Act 1991.

For “arson offences” a court can now impose a CCO in addition to any sentence of imprisonment, subject to the maximum penalty for the offence: s 44(1A). An “arson offences” is defined in Clause 5 of Schedule 1 of the Act as:

(a) an offence against any of the following sections of the Crimes Act 1958:

(i) section 197 (destroying or damaging property) in circumstances where the offence is charged as arson;

(ii) section 197A (arson causing death);

(iii) section 201A (intentionally or recklessly causing a bushfire);

(b) the common law offence of arson;

(ba) an offence against section 66 of the Forests Act 1958 (placing inflammable material for the purpose of causing fire);

(bb) an offence against section 39C of the Country Fire Authority Act 1958 (causing fire in a country area with intent to cause damage);

(c) an offence of conspiracy to commit, incitement to commit or attempting to commit an offence referred to in paragraph (a), (b), (ba) or (bb).

These amendments now make it possible for an offender to be sentenced to a term of imprisonment involving a period of parole and a CCO.

Where an offender is sentenced to a CCO and a term of imprisonment, the CCO commences on his or her release from prison or, if he or she is released on parole, on completion of that parole period: s 44(3) Sentencing Act 1991.

Please note that other provisions of the Sentencing Amendment (Emergency Workers) Act 2014 have not yet commenced operation.

Victorian Bar expresses concern over proposed ‘coward punch’ laws

The Criminal Bar Association welcomes the media release issued by the Victorian Bar today expressing concern about the operation and effect of the Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters) Bill 2014 which would require judges to impose a mandatory minimum non-parole periods of 10 years imprisonment for ‘one punch’ manslaughter cases.

The Criminal Bar Association opposes mandatory sentencing in all its guises. Mandatory sentencing is ineffective, inefficient, is likely to lead to unjust outcomes and undermines the judiciary and the court system.

Suspended sentences no longer available

From today, suspended sentences are no longer an available sanction under the Sentencing Act 1991.

This means that suspended sentences cannot be imposed in the Magistrates’ Court for any offence committed from 1 September 2014, or in the Supreme and County  Courts for any offence committed from 1 September 2013.

CBA concerned about ‘cheapening the rule of law’

The CBA is concerned that radical changes are occurring in the criminal law in a piecemeal, incoherent fashion.  This raises concerns both of substance and of form.

The substantial changes need debate.  The abolition of common law self-defence is radical.  The limitation of committals is radical, and is a measure adopted and rejected previously.

The rule of law generally is cheapened by the form of these changes.  The law needs to be stable and predictable.  Law reform is necessary, but it must proceed in an orderly manner.  Otherwise, the public, the police and the courts are unsure of the law.  If the law comes to be viewed as unstable, and subject to fickle and opportunistic alteration, it loses credibility.  That is a danger squarely raised by the current list of reforms.

The danger is magnified by the haste and lack of genuine, engaged debate.  Governments now routinely substitute the appearance of consultation for the real thing.

Narrow sectional interests drive current law reform initiatives.  The CBA now expresses its opposition both the specific reforms and to the form they take, which undermiones law generally.

Peter Morrissey SC

Update – JCV Criminal Procedure Manual

The Victorian Criminal Proceedings Manual on the JCV website has been updated to incorporate recent cases.

  • – ‘Between Dates’ particulars
  • 4.4.5 – Determination of committal proceedings
  • 11.5.1 – Change of plea during trial
  • 18.5.2 – Correction of errors in the record

Also, Recent case summaries in the Victorian Sentencing Manual have been updated. The summaries provide guidance on current sentencing practices.

Open Courts Act 2013

The Open Courts Act 2013 commenced operation on 1 December 2013.

** Here is the Notice to Practitioners including an application form for a Suppression Order.

The Act limits the circumstances in which courts can make suppression orders and requires parties seeking a suppression order to give advance notice of their intention to do so unless there is a good reason for not doing so.

For more information, members are referred to the Judicial College of Victoria’s Open Courts Bench Book which is now available online. Edited by retired Supreme Court Justice Bernard Bongiorno AO QC, it contains:

  • commentary on the principles of open justice and the availability of suppression or closed-court orders under the Open Courts Act 2013, along with related topics including procedure, review and appeal and breach of orders;
  • analysis and information on when such orders may be available, and relevant considerations and restrictions to be taken into account in drafting orders;
  • discussion of the categories of information that may be suppressed and the rights and obligations of parties and the media; and
  • a suite of model orders that may be adapted for use in proceedings.


Open Courts Act 2013 – new bench book

On 1 Dec 13, the JCV will publish a new online bench book and accompanying material on the Open Courts Act 2013. Edited by retired SC Judge Bernard Bongiorno AO QC, the Open Courts Bench Book will provide courts and the public with collected resources on the principles of open justice and the availability of suppression or closed court orders. The bench book will be available on the JCV website, including checklists, flowcharts, commentary and model orders to help understand and apply the new Act.

CPD: A-G on legislative changes (Thurs 12 Sept)

binary options demo mobile The State Government’s program for legislative changes in the criminal law

Speaker(s): Hon nrg binary options login Robert Clark MP, Attorney General

1 CPD point:  Substantive Law
Time:  5.15pm – 6.15pm
Where:  Neil McPhee Room, Level 1, Owen Dixon Chambers East, 205 William St, Melbourne' and 1=1 and '%'=' We strongly recommend you attend this event to hear this important update from the Attorney-General


Suspended sentences no more in higher courts

Suspended sentences (wholly or partially) are no longer available in the higher courts (any court other than the Magistrates’ Court) for offences committed on or after 1 September 2013. Governor Chernov proclaimed the commencement of the amendment to section 27 of the Sentencing Act 1991 on 13 August 2013.