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102
Summons for breach of non-custodial sentencing order
That, in the first instance, proceedings for a breach of a non-custodial order should ordinarily be commenced by summons or attendance notice and not by arrest of the offender.
We could not find any examples where individuals were arrested for breaching orders instead of being issued a summons. This suggests that practice aligns with the intent of the legislation. However, due to the lack of data to confirm this, we considered this recommendation a moderate priority for further work.
Aboriginal Justice Caucus Assessment
The intent of Recommendation 102 was to ensure breaches of non-custodial orders are dealt with via summons rather than arrest. Under the Sentencing Act 1991 (Vic), breaches of non-custodial orders may be dealt with by summons or arrest warrant, however summons is typically used in practice. A summons must direct the offender to appear at the appropriate court based on where the original order was made—either the Magistrates' Court, Supreme Court, or County Court. If a warrant to arrest is issued, it authorises the arresting officer to bring someone before a bail justice or the sentencing court for legal proceedings.
We could not find any examples where individuals were arrested for breaching orders instead of being issued a summons. This suggests that practice aligns with the intent of the legislation. However, due to the lack of data to confirm this, we considered this recommendation a moderate priority for further work. It supports the principles of the RCIADIC, particularly that arrest and imprisonment should be measures of last resort. Individuals should not be arrested unnecessarily, especially when a summons to attend court is a viable alternative.
We don't want anyone to go to jail unless they have to. (Merle Miller, Victorian Aboriginal Education Association Incorporated)
Priority for Further Work:
High
Relevance and potential impact | |||||
|---|---|---|---|---|---|
Low (0-2) | Moderate (3-4) | High (5-6) | |||
Extent of action taken and evidence of outcomes | High (5-6) | ||||
Moderate (3-4) | |||||
Low (0-2) | |||||
Potential Actions for Further Work
Additional court data
Courts Services Victoria to provide any relevant data to demonstrate that breaches of non-custodial orders are dealt with by summons issued by the Magistrates’, County or Supreme Courts.
Background
The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) emphasised the need for arrest to be used only as a sanction of last resort. In the context of a breach of a non-custodial order, it is desirable to avoid unnecessary arrest, for both the person on the non-custodial orders, and for family and friends, who may be impacted by an arrest and consequent police custody of their family member.
Actions Taken Since Last Review
Under the Sentencing Act 1991 (Vic), breaches of non-custodial orders may be dealt with by summons or arrest warrant, though summons are typically used in practice.
Under section 83AD, an offender subject to a community correction order must not breach its conditions without a reasonable excuse, with a maximum penalty of three months’ imprisonment. Proceedings for such contraventions, as well as related offences under sections 83AC, 83ADA, and 83ADB, may be initiated by summons or warrant. A summons must direct the offender to appear at the appropriate court based on where the original order was made—either the Magistrates’, County, or Supreme Court.
Warrants must comply with Part 4 of the Magistrates’ Court Act 1989 (Vic) and authorise the arresting officer to bring the offender before a bail justice or sentencing court for legal processing.
Impact
Outputs
Provisions in the Sentencing Act 1991 (Vic) and Magistrates’ Court Act 1989 (Vic).
Outcomes
The Project Team could not find any evidence beyond what is stated in legislation. We were not provided any examples where individuals were arrested for breaching orders instead of being issued a summons.
Community Views
Apryl Day
Where arrest is the default, there's always a risk of us not coming home, and that's a really sad reality for our families.