Community Correction Orders Quiz B

Considerations when making Community Correction Orders

A scenario on making Community Correction Orders.

Facts

In March 2012, Bernard entered through an unlocked door of a house in Bentleigh while the occupants were upstairs watching television and stole a wallet and car keys from a downstairs bench. He then used the keys to drive the owner’s car away. He later used a credit card found in the wallet to make purchases at five retailers, totalling $3000. He was charged with one count of aggravated burglary, two counts of theft and five counts of obtaining property by deception. Bernard pleads guilty to the charges.

The following matters are put forward on the plea in mitigation:

  • Bernard is aged 48, is married and has four children. He works part time as a car salesman, but has difficulty holding down long term employment due to his problems with drug use.
  • Bernard has a long history of offending, with 35 previous convictions from 14 occasions. These offences relate to either drug use, or dishonesty offences associated with drug use. These have generally resulted in short prison sentences, suspended sentences or community-based sanctions.
  • While in prison, Bernard tends to be a model prisoner, but struggles with less controlled environments.
  • Bernard managed to successfully complete his most recent period of parole and corrections officials are guardedly optimistic regarding his potential to turn his life around at this stage.

Bernard’s counsel argues that, despite the seriousness of the offences, the court should foster the signs of rehabilitation by imposing a Community Correction Order, rather than a custodial sanction. Judge Watson retires to consider her sentence.

Bernard is sentenced on 15 June 2012.

1:What is the purpose a Community Correction Order?
A)

To reduce the strain on the Victorian prison system by housing offenders in the community.

Incorrect

The purpose of a Community Correction Order is to provide a community based sentence that may be used for a wide range of offending behaviour while having regard to and addressing the circumstances of the offender: Sentencing Act 1991 s36.

B)

To provide a sentencing option suitable for low-grade offences.

Incorrect

The purpose of a Community Correction Order is to provide a community based sentence that may be used for a wide range of offending behaviour while having regard to and addressing the circumstances of the offender: Sentencing Act 1991 s36.

C)

To provide extended supervision of high risk offenders after release from prison.

Incorrect

The purpose of a Community Correction Order is to provide a community-based sentence that may be used for a wide range of offending behaviour while having regard to and addressing the circumstances of the offender: Sentencing Act 1991 s36.

D)

To provide a community based sentencing option that addresses a wide range of offending behaviour while addressing the circumstances of the offender.

Correct

See Sentencing Act 1991s36.

2:Which of the following terms are attached to all Community Correction Orders?
A)

The offender must not commit another offence punishable by imprisonment during the term of the order.

Correct

Sentencing Act 1991 s45(1)(a) makes it a term of all Community Correction Orders that the offender not re-offend for the duration of the order.

B)

he offender must not change his or her address during the term of the order.

Incorrect

Sentencing Act 1991 s45(1)(d) only requires the offender to notify the Secretary to the Department of Justice of any change of address and section 48G allows the court to choose to impose a condition that the offender not change his or her residence.

C)

The offender must report to his or her local police station once a week for the duration of the order.

Incorrect

The offender must report to the Secretary to the Department of Justice (Sentencing Act 1991 s45(1)(b)), in a manner set by the Secretary (Sentencing Act 1991 s46), but not Victoria Police.

D)

The offender must leave Victoria and must not return for the duration of the order.

Incorrect

Section 45(1)(e) requires the offender to remain in Victoria, unless granted permission to leave by the Secretary to the Department of Justice.

3:Which of the following statements are true?
A)

“Division 4 of Part 3A of the Sentencing Act contains all the conditions a court can attach to a Community Correction Order.”

Incorrect

A court can also impose a justice plan condition under Division 3 of Part 3B, and a residual condition under s48.

B)

“When the court makes a Community Correction Order, it must impose one or more of the conditions in Division 4 of Part 3A.”

Incorrect

A court must impose one or more of the conditions in Division 4 of Part 3A, or a justice plan condition under Division 3 of Part 3B: s47.

C)

“A court imposing a Community Correction Order can attach whatever conditions it considers appropriate in the interests of justice and the conditions listed in Division 4 of Part 3A are just a guide to possible conditions.”

Incorrect

A court that is making a Community Correction Order must either attach one or more of the conditions in Division 4 of Part 3A or a justice plan condition under Division 3 of Part 3B. While the court can also impose a discretionary condition under s48, such a condition cannot relate to making restitution, payment of compensation, costs or damages, or be about the same subject matter as a condition under Division 4 of Part 3A or Division 3 of Part 3B.

D)

“When the court makes a Community Correction Order, it may, in addition to any statutory conditions, attach a condition that does not cover the same subject matter as a condition described in Division 4 of Part 3A or Division 3 of Part 3B, other than a condition about making restitution or the payment of compensation, costs or damages”.

Correct

Section 48 allows the court to impose a discretionary, residual condition in addition to the statutory conditions, which, under s47, must be included. A discretionary condition cannot be one about making restitution or the payment of compensation, costs or damages.

4:Can Judge Watson impose separate 6 month sentences of imprisonment for the theft and obtaining property charges to be served concurrently and wholly suspended for 6 months, and a Community Correction Order for the aggravated burglary?
A)

Yes

Incorrect

Section 44(1) allows a court to combine a CCO with a sentence of imprisonment with up to 2 years to be served. However, section 44(4) states that a reference to a ‘sentence of imprisonment’ does not include a sentence that has been suspended. The result is that a court cannot combine a suspended sentence of imprisonment with a CCO.

B)

No

Correct

Section 44(1) allows a court to combine a CCO with a sentence of imprisonment with up to 2 years to be served. However, section 44(4) states that a reference to a ‘sentence of imprisonment’ does not include a sentence that has been suspended. The result is that a court cannot combine a suspended sentence of imprisonment with a CCO. If the sentences for the theft and obtaining property charges are not suspended, then the court could impose a CCO for the aggravated burglary charge.

5:If Judge Watson imposes Community Correction Orders for each offence, and those orders contain different conditions, what are the total effective conditions that apply to Bernard?
A)

All conditions on different Community Correction Orders are served cumulatively. If the offender is required to perform multiple periods of unpaid community work, those periods are cumulated.

Incorrect

Sections 41 and 42 specify that, subject to any orders of the court, Community Correction Orders are served concurrently, including separate periods of unpaid community work.

B)

The court must select a base Community Correction Order and conditions on other Community Correction Orders are disregarded unless the court makes an order cumulating those other conditions.

Incorrect

Sections 41 and 42 specify that, subject to any orders of the court, Community Correction Orders are served concurrently, including separate periods of unpaid community work.

C)

Unless the court directs others, conditions on several Community Correction Orders are served concurrently. The offender must comply with the conditions on all Community Correction Orders, but multiple periods of unpaid community work are completed concurrently.

Correct

Sections 41 and 42 specify the presumption of concurrency of orders.

D)

The court must specify the order in which the offender must complete the conditions on a Community Correction Order. Orders are held in abeyance until the offender completes earlier orders.

Incorrect

Sections 41 and 42 specify that, subject to any orders of the court, Community Correction Orders are served concurrently, including separate periods of unpaid community work.

6:Which of the following conditions are not available to Judge Watson under Division 4 of Part 3A?
A)

Unpaid community work condition

Incorrect

Section 48C allows the court to impose an unpaid community work condition.

B)

Supervision condition

Incorrect

Section 48E allows the court to impose a supervision condition.

C)

Curfew condition

Incorrect

Section 48I allows the court to impose a curfew condition.

D)

All the above conditions are available to Judge Watson

Correct

All the above conditions are available to Judge Watson

7:Can Judge Watson include multiple conditions on one order, or must she impose the conditions over multiple orders?
A)

Each order must have only one condition.

Incorrect

Section 47 states that the court may attach one or more conditions under Division 4 of Part 3A.

B)

A Community Correction Order may contain multiple conditions.

Correct

Section 47 states that the court may attach one or more conditions under Division 4 of Part 3A.

8:Which of the following statements accurately describe the limits on curfew conditions?
A)

The circumstances of the case and the need to impose an appropriate sanction are the only limits on curfew conditions.

Incorrect

Sentencing Act 1991 s48I states that a curfew must direct the offender to remain at the place specified in the order between specified hours of each day. The period the court specifies must be not less than 2 hours each day and not more than 12 hours each day. The duration of the curfew must be not more than 6 months.

B)

The only limit is that the curfew condition must be for less than 6 months.

Incorrect

Sentencing Act 1991 s48I states that the curfew must specify that the offender must remain at the designated place for not less than 2 hours each day and not more than 12 hours each day.

C)

The curfew must specify that the offender must remain at the designated place for not less than 2 hours each day and not more than 12 hours each day for a period of not more than 6 months.

Correct

See Sentencing Act 1991 s48I.

9:When Judge Watson receives the pre-sentence report, it reveals that the Magistrates’ Court has issued an interim family violence intervention order. What effect does this have on the conditions Judge Watson can impose?
A)

None. As the order is not a final order, Judge Watson should disregard it, as the allegations are unproven.

Incorrect

Many conditions available under the Sentencing Act 1991, including residence conditions, place or area exclusion conditions and curfew conditions, require the court not to attach a condition that is inconsistent with a family violence intervention order. While the Sentencing Act 1991 does not define ‘family violence intervention order’, it is likely that this term refers to both interim and final orders under the Family Violence Protection Act 2008.

B)

None. The sentencing powers of a County Court judge cannot be constrained by a civil order of a Magistrate made under the Family Violence Protection Act 2008.

Incorrect

Many conditions available under the Sentencing Act 1991, including residence conditions, place or area exclusion conditions and curfew conditions, require the court not to attach a condition that is inconsistent with a family violence intervention order. While the Sentencing Act 1991 does not define ‘family violence intervention order’, it is likely that this term refers to both interim and final orders under the Family Violence Protection Act 2008.

C)

Judge Watson must not impose any condition that is inconsistent with the terms of the family violence intervention order.

Correct

Many conditions available under the Sentencing Act 1991, including residence conditions, place or area exclusion conditions and curfew conditions, require the court not to attach a condition that is inconsistent with a family violence intervention order. While the Sentencing Act 1991 does not define ‘family violence intervention order’, it is likely that this term refers to both interim and final orders under the Family Violence Protection Act 2008.

D)

Judge Watson must take the order into account, but may choose to vary or override the order if necessary to impose an appropriate penalty.

Incorrect

Many conditions available under the Sentencing Act 1991, including residence conditions, place or area exclusion conditions and curfew conditions, require the court not to attach a condition that is inconsistent with a family violence intervention order. While the Sentencing Act 1991 does not define ‘family violence intervention order’, it is likely that this term refers to both interim and final orders under the Family Violence Protection Act 2008.

Comments

Q6: I understand an electronic monitoring condition may be imposed under s48LA, therefore an electronic monitoring condition would be available to the Court under Div 4 of Part 3A. Can you please confirm whether this interpretation is correct.

JCV Response:
Judge Watson would be able to impose an electronic monitoring condition, pursuant to Division 4 of Part 3A. This condition was not originally available to sentencers when this quiz was designed, but is now an option when imposing a community correction order. We have now amended the quiz accordingly.

Re Question 5. If the crime were different i.e more than one count of indecent assault where the accused pleads guilty, am I correct in thinking that for one count a CCO can be ordered and for the second and/or subsequent counts a sentence greater than 3 months can be imposed?

JCV Response - This raises the same issue as the question asked on January 23, 2012 (below). We'll have to wait and see if that is an available sentence under the CCO legislation.

The answer to question 7 still does not look right to me.
Re question 4 - I disagree with your interpretation of 44(2)but agree that it is unclear. The explanatory memorandum is ambiguous. I suggest that 44(2)is to clarify that a person cannot be sentenced to serve more than 3 months before doing a CCO and that the provision would have been clearer if Parliament meant to reverse the previous position.
I would argue that it doesn't make any difference whether the non CCO sentences are aggregated or not.
As you say we will have to see.

JCV Response - Thanks for pointing out the problem with question 7. It should work properly now.

Re question 7, the answer doesn't seem to correlate with the subject matter of the question.

JCV Response - Thanks for point this out to us. We have now corrected the answers for this question.

re question 4 - I assume the judge can impose a 6 month suspended for the theft and obtaining charges and a CCO on the agg burg if the suspended sentence is imposed as an aggregate sentence as there is only one sentence of imprisonment being imposed which is not prohibited by s 44(2)?

JCV Response - This question wasn't directed at the use of aggregate sentences and we have modified question 4 to make that clear. In relation to the question, the interaction between s44(1) and 44(2) is ambiguous. The settled interpretation of the equivalent provision in relation to CBOs was that courts could impose the sentence you suggested, but section 44(2) is a new provision and it is unclear whether it is meant to reverse the previous approach. We'll have to wait and see if that continues to be an option under the CCO regime

Post new comment

  • Allowed HTML tags: <a> <em> <strong> <ul> <ol> <li>
  • Lines and paragraphs break automatically.
  • Web page addresses and e-mail addresses turn into links automatically. (Better URL filter.)
CAPTCHA
Please enter the words you see in the box, in order and separated by a space. Doing so helps prevent automated programs from abusing this service.

Main Navigation

JOIN Login

The Judicial Officers Information Network (JOIN) is an online resource for judicial officers and their support staff. JOIN ensures judicial officers have access to legislation, judgments, publications including benchbooks and manuals, sentencing statistics and legal reference material.

JOIN is for work use only. All users must agree to the terms and conditions before using it. The Judicial College supplies and manages the username and password.