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Road Safety and Sentencing Acts Amendment Act 2012

No. 45 of 2012

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purposes 12 Commencement 2

PART 2—AMENDMENT OF THE ROAD SAFETY ACT 1986 3

3 Direction to impose alcohol interlock condition 34 New section 103ZF inserted 3

103ZF Transitional provision—Road Safety and Sentencing Acts Amendment Act 2012 3

5 New section 105A inserted 4105A Validation concerning certain alcohol interlock

conditions 4

PART 3—AMENDMENT OF THE SENTENCING ACT 1991 7

6 Amendment of section 7 77 Amendment of section 38 78 Substitution of section 44 7

44 Imprisonment and a community correction order 79 Section 116A repealed 810 New sections 147 and 148 inserted 8

147 Transitional provision—Sentencing Amendment (Community Correction Reform) Act 2011 8

148 Transitional provision—Road Safety and Sentencing Acts Amendment Act 2012 8

11 Amendment of heading to Schedule 3 912 Amendment of clause 5 in Schedule 3 913 New Part 4 inserted in Schedule 3 10

PART 4—ROAD SAFETY AND SENTENCING ACTS AMENDMENT ACT 2012—VALIDATIONS 10

18 Validation of certain community correction orders 10

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PART 4—REPEAL OF AMENDING ACT 13

14 Repeal of amending Act 13═══════════════

ENDNOTES 14

Road Safety and Sentencing Acts Amendment Act 2012†

No. 45 of 2012

[Assented to 17 August 2012]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purposes

The purposes of this Act are—

(a) to amend the Road Safety Act 1986 to empower a court to direct the Roads Corporation to impose an alcohol interlock condition on a driver licence or permit issued to a person following disqualification for a drink-driving infringement and to validate certain orders and other actions purportedly

Victoria

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made or taken in reliance on or in relation to alcohol interlock conditions; and

(b) to amend the Sentencing Act 1991—

(i) to confirm the availability of community correction orders as a sentencing option; and

(ii) to validate certain orders purportedly made and other actions purportedly taken in relation to community correction orders already made; and

(iii) to clarify the sentencing options involving community correction orders.

2 Commencement

(1) This Act (except sections 7, 8, 10 and 12) comes into operation on the day on which it receives the Royal Assent.

(2) Sections 7, 8 and 10 come into operation on the day after the day on which this Act receives the Royal Assent.

(3) Section 12 is taken to have come into operation on 16 January 2012.

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Section Page

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s. 2

PART 2—AMENDMENT OF THE ROAD SAFETY ACT 1986

3 Direction to impose alcohol interlock conditions. 3

See:Act No.127/1986.Reprint No. 14as at27 April 2012and amendingAct Nos19/1991, 32/2011, 34/2011, 65/2011, 21/2012 and 43/2012.LawToday:www.legislation.vic.gov.au

For section 50AAA(1)(a) of the Road Safety Act 1986 substitute—

"(a) a person was disqualified under section 50 or 89C from obtaining a driver licence or permit because—

(i) he or she was convicted or found guilty of an offence under section 49(1)(a) (other than an offence involving only drugs) or under section 49(1)(b), (c), (d), (e), (f) or (g); or

(ii) a traffic infringement notice issued to the person in respect of a drink-driving infringement took effect as a conviction for an offence specified in subparagraph (i); and".

4 New section 103ZF inserted

Before section 104 of the Road Safety Act 1986 insert—

"103ZF Transitional provision—Road Safety and Sentencing Acts Amendment Act 2012

Section 50AAA as amended by section 3 of the Road Safety and Sentencing Acts

Part 2—Amendment of the Road Safety Act 1986

Road Safety and Sentencing Acts Amendment Act 2012No. 45 of 2012

3

Amendment Act 2012 applies to a direction to the Corporation given on or after the commencement of section 3 of that Act, irrespective of when the conviction, finding of guilt or taking effect as a conviction occurred.".

5 New section 105A inserted

After section 105 of the Road Safety Act 1986 insert—

"105A Validation concerning certain alcohol interlock conditions

(1) If, on or after 11 October 2006 and before the day on which the Road Safety and Sentencing Acts Amendment Act 2012 receives the Royal Assent, a court gave or purported to give a direction to the Corporation under section 50AAA (as then in force) in relation to a person disqualified under section 89C from obtaining a driver licence or permit, each of the following has, and is taken always to have had, the same force and effect as it would have had if section 3 of that Act had been in operation when the direction was given or purported to be given—

(a) the direction under section 50AAA;

(b) any order made or purported to have been made by a court (whether on appeal or otherwise), including any penalty imposed, in relation to—

(i) the direction under section 50AAA; or

s. 5Part 2—Amendment of the Road Safety Act 1986


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(ii) compliance with an alcohol interlock condition imposed on a driver licence or permit as a result of the direction; or

(iii) an offence in relation to an alcohol interlock condition imposed on a driver licence or permit as a result of the direction;

(c) any act performed or decision made, whether under this or any other Act or otherwise, in reliance on or in relation to—

(i) the direction under section 50AAA; or

(ii) an alcohol interlock condition imposed on a driver licence or permit as a result of the direction; or

(iii) any order referred to in paragraph (b).

(2) Any act or thing done or omitted to be done, whether under a power conferred by or under an enactment or otherwise, before or after the commencement of section 5 of the Road Safety and Sentencing Acts Amendment Act 2012 in reliance on or in relation to a matter referred to in subsection (1)(a), (b) or (c) has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences, as if section 3 of the Road Safety and Sentencing Acts Amendment Act 2012 had been in operation when the direction was given or purported to be given under section 50AAA.



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(3) A right or liability conferred or imposed in relation to, or affected by a matter referred to in subsection (1)(a), (b) or (c) is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable, as if section 3 of the Road Safety and Sentencing Acts Amendment Act 2012 had been in operation when the direction was given or purported to be given under section 50AAA.

(4) Without limiting subsection (3), the rights and liabilities conferred or imposed in relation to a matter referred to in subsection (1)(a), (b) or (c) include rights of appeal.

(5) This section does not affect the right of any person to appeal against a matter referred to in subsection (1)(a), (b) or (c) on any other ground.".

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PART 3—AMENDMENT OF THE SENTENCING ACT 1991

6 Amendment of section 7s. 6

See:Act No.49/1991.Reprint No. 13as at17 February 2012and amendingAct Nos68/2010, 65/2011, 26/2012 and 43/2012.LawToday:www.legislation.vic.gov.au

In section 7(1) of the Sentencing Act 1991, for "this Part" substitute "this Act".

7 Amendment of section 38

For section 38(2) of the Sentencing Act 1991 substitute—

"(2) Unless section 44(3) applies, a community correction order must commence on a date specified by the court that is not later than 3 months after the making of the order.".

8 Substitution of section 44

For section 44 of the Sentencing Act 1991 substitute—

Part 2—Amendment of the Road Safety Act 1986


7

"44 Imprisonment and a community correction order

(1) When sentencing an offender in respect of one, or more than one, offence, a court may make a community correction order in addition to imposing a sentence of imprisonment only if—

(a) any sentence of imprisonment imposed on that occasion in relation to any offence is not suspended; and

(b) the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 3 months or less.

(2) Section 27(5) does not apply to this section.

(3) If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment.".

9 Section 116A repealed

Section 116A of the Sentencing Act 1991 is repealed.

10 New sections 147 and 148 inserted

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

"147 Transitional provision—Sentencing Amendment (Community Correction Reform) Act 2011

Schedule 3 has effect.



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148 Transitional provision—Road Safety and Sentencing Acts Amendment Act 2012

(1) Section 38 as amended by section 7 of the Road Safety and Sentencing Acts Amendment Act 2012 applies to a sentence imposed on or after the commencement of section 7 of that Act, irrespective of when the offence was committed or the finding of guilt was made.

(2) Section 44 as substituted by section 8 of the Road Safety and Sentencing Acts Amendment Act 2012 applies to a sentence imposed on or after the commencement of section 8 of that Act, irrespective of when the offence was committed or the finding of guilt was made.

(3) Despite subsections (1) and (2), the amendment of section 38 by section 7 of the Road Safety and Sentencing Acts Amendment Act 2012 and the substitution of section 44 by section 8 of that Act do not affect the rights of the parties in the proceedings known as DPP v Tyson Jason Leys; DPP v Dillon Thomas Leys (No. S APCR 2012 0054 and No. S APCR 2012 0055).".

11 Amendment of heading to Schedule 3

(1) Before the heading to Schedule 3 to the Sentencing Act 1991, omit "Section 116A".

(2) For the heading to Schedule 3 to the Sentencing Act 1991 substitute—

"TRANSITIONAL PROVISIONS—SENTENCING AMENDMENT (COMMUNITY

CORRECTION REFORM) ACT 2011".



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12 Amendment of clause 5 in Schedule 3

In clause 5 of Schedule 3 to the Sentencing Act 1991, for "that Act" substitute "section 21 of that Act".

13 New Part 4 inserted in Schedule 3

At the end of Schedule 3 to the Sentencing Act 1991 insert—

"PART 4—ROAD SAFETY AND SENTENCING ACTS AMENDMENT ACT 2012—

VALIDATIONS

18 Validation of certain community correction orders

(1) A community correction order made or purported to have been made on or after 16 January 2012 and before the day on which the Road Safety and Sentencing Acts Amendment Act 2012 receives the Royal Assent has, and is taken always to have had, the same force and effect as it would have had if section 12 of that Act had been in operation when the order was made or purported to have been made.

(2) For the avoidance of doubt, a community correction order may be made in respect of an offender sentenced on or after 16 January 2012, irrespective of when the offence was committed or the finding of guilt was made.



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(3) A community correction order referred to in subclause (1) and a sentence of imprisonment (irrespective of the period of imprisonment and whether or not the sentence is suspended in whole or in part) that are imposed on an offender in exercise, or purported exercise, of a power under section 44 (as then in force) are not invalid by reason only of failure to comply with section 44.

(4) Any act or thing done or omitted to be done, whether under a power conferred by or under an enactment or otherwise, before or after the commencement of section 13 of the Road Safety and Sentencing Acts Amendment Act 2012 in reliance on or in relation to—

(a) a community correction order that is validated by subclause (1) or (3) or a sentence of imprisonment that is validated by subclause (3); or

(b) a contravention or alleged contravention of an order or sentence referred to in paragraph (a)—

including any penalty imposed, has the same effect, and gives rise to the same consequences, and is to be regarded as always having had the same effect and having given rise to the same consequences, as if section 12 of the Road Safety and Sentencing Acts Amendment Act 2012 had been in operation and section 44 of this Act (as then in force) had been complied with.

(5) A right or liability conferred or imposed in relation to, or affected by—



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(a) a community correction order that is validated by subclause (1) or (3) or a sentence of imprisonment that is validated by subclause (3); or

(b) a contravention or alleged contravention of an order or sentence referred to in paragraph (a)—

including any penalty imposed, is exercisable or enforceable, and is to be regarded as always having been exercisable or enforceable, as if section 12 of the Road Safety and Sentencing Acts Amendment Act 2012 had been in operation and section 44 of this Act (as then in force) had been complied with.

(6) Without limiting subclause (5), the rights and liabilities conferred or imposed in relation to a community correction order include rights of appeal.

(7) This clause does not affect the right of any person to appeal against a sentence that includes a community correction order on any other ground.

(8) This clause and the amendment of clause 5 of this Schedule by section 12 of the Road Safety and Sentencing Acts Amendment Act 2012 do not affect the rights of the parties in the proceedings known as DPP v Tyson Jason Leys; DPP v Dillon Thomas Leys (No. S APCR 2012 0054 and No. S APCR 2012 0055).".

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PART 4—REPEAL OF AMENDING ACT

14 Repeal of amending Act

This Act is repealed on the first anniversary of the first day on which all of its provisions are in operation.

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

Endnotes


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† Minister's second reading speech—

Legislative Assembly: 14 August 2012

Legislative Council: 14 August 2012

The long title for the Bill for this Act was "A Bill for an Act to amend the Road Safety Act 1986 and the Sentencing Act 1991 and for other purposes."

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