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Program Probation Orders

The content on this page was last reviewed on 22 January 2021.

1. Overview

Where a court is sentencing a federal offender who is suffering from intellectual disability the court may make a Program Probation Order under s 20BY. ‘Intellectual disability’ is not defined in the Crimes Act 1914 (Cth).

2. Where a Program Probation Order May be Made

The court may, without passing sentence, make a Program Probation Order where:

  • a person is convicted in a State or Territory of a federal offence: s 20BY(1);

and the court is satisfied that:

  • the person is suffering from an intellectual disability: s 20BY(1)(a); and
  • the disability contributed to the commission of the offence by the person: s 20BY(1)(b); and
  • an appropriate education program or treatment is available for the person in that State or Territory: s 20BY(1)(c).

A Program Probation Order must not be made unless the person, or their legal guardian, consents to the proposed program: ss 20BY(2) and 20BV(2).

A Program Probation Order is made without passing sentence. 1

3. What a Program Probation Order Must Specify

The order must specify:

  • the period during which the order applies: s 20BY(1); and
  • the program or treatment to be undertaken: s 20BY(1).

4. Conditions of a Program Probation Order

Section 20BY(2) provides that a Program Probation Order is subject to the same conditions imposed on a Psychiatric Probation Order.

See federal commentary concerning ss 20BV(3)–(4): Psychiatric Probation Orders.

5. Breach and Enforcement of a Program Probation Order

Section 20BY(2) provides that a Program Probation Order is subject to the same breach provisions as a Psychiatric Probation Order: see federal commentary concerning s 20BW: Psychiatric Probation Orders.

Section 20BY(2) provides that a Program Probation Order is subject to the same enforcement provisions as a Psychiatric Probation Order: see federal commentary concerning s 20BX: Psychiatric Probation Orders.

6. Program Probation Orders and State or Territory Sentencing Provisions for Intellectually Disabled Offenders

In The Queen v Cone (a pseudonym) [2019] VCC 2241, the Court considered s 20BY in the context of a submission by the Commonwealth Director of Public Prosecutions that a Court could not attach a ‘Justice Plan’ as a condition of a Community Correction Order under s 80 of the Sentencing Act 1991 (Vic). Under s 80, a ‘Justice plan condition’ may be imposed as a condition where the court is sentencing an offender with an intellectual disability. The Court rejected the argument that Division 9 of the Crimes Act 1914 (Cth) made exhaustive provision for the sentencing of intellectually disabled offenders so as to preclude the state provision from being ‘picked up’ and applied under ss 68 and 79 of the Judiciary Act 1903 (Cth). Judge Fox stated at [51]:

In my view, Division 9 does not expressly or by implication make exhaustive provision for the sentencing of intellectually disabled offenders, nor does it create a Commonwealth legislative scheme relating to the sentencing of intellectually disabled offenders which is “complete upon its face” and which may be “seen to have left no room” for the operation of s.47(2)(b) of the Sentencing Act. Division 9 of the Crimes Act provides one additional option for this Court, which is to convict the offender and impose a program probation order. It cannot reasonably be implied that by enacting Division 9, including s.20BY, the Commonwealth was intending to express exclusively what shall be the law governing the sentencing of intellectually disabled offenders.

In DPP (Cth) v Cameron [2020] VCC 1506, Judge Tinney was again faced with a Crown submission that a Justice Plan under s 80 of the Sentencing Act 1991 (Vic) could not be attached to a Community Corrections Order. Judge Tinney agreed with the reasoning in R v Cone [2019] VCC 2241, stating at [76] that:

I have considered the matter afresh and I am unchanged in that view. The argument elevates a Justice plan to a sentencing disposition. It is not a disposition. It can be attached to a sentencing disposition in some circumstances. The sentencing disposition here would be a community corrections order, with a Justice plan as one of the tailored conditions of such an order. I see no inconsistency at all in such a condition being attached to an order in the Commonwealth regime. I reject the prosecution submission. I note that Judge Fox of this court did so as well and I agree wholeheartedly with her reasons for doing so. It would be a strange outcome to find that this ‘implied’ inconsistency prohibited a Justice plan being attached to a community corrections order, whilst at the same time concluding that the aspects of the Justice plan could be made conditions of a recognizance release order.  In any event, the provisions in the Crimes Act dealing with impaired functioning all require a causative connection. A Justice plan does not.  It is designed to reduce the risk of future offending by linking an offender in to available services. It also is a means of ensuring better and more meaningful compliance with the actual sentencing disposition, being the community corrections order.  The community corrections order is the sentencing disposition and that undoubtedly is a prescribed disposition under the Crimes Act.  So, as I say, I reject the Crown submission.

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Notes:

  1. No other sentence may be imposed in relation to the same offence: Arie Freiberg, Sentencing: State and Federal Law in Victoria (3rd ed, 2014) [15.90].