Alcohol Exclusion Orders (Vic)
When a person is sentenced for a criminal offence in Victoria, the court may make a range of sentencing orders such as imposing a fine or a term of imprisonment. There are also various types of ancillary orders that the court may make at the same time. These include forfeiture orders and compensation orders. In some circumstances, the prosecution may also ask the court to make an Alcohol Exclusion Order under the Sentencing Act 1991. This article deals with Alcohol Exclusion Orders in Victoria.
What is an Alcohol Exclusion Order?
An Alcohol Exclusion Order is a court order with conditions that prohibit the offender from doing certain things, usually for a period of two years.
The conditions may include:
- That the person is excluded from a designated area and/or licenced premises, at all times;
- That the person is allowed to enter a designated area and/or licenced premise, for a specified purpose;
- Any other conditions that the court deems suitable.
Offence to breach Alcohol Exclusion Order
Under Section 89DF of the Sentencing Act 1991, it is an offence to contravene a condition of an Alcohol Exclusion Order. This offence can attract a maximum penalty of two years imprisonment.
When can an Alcohol Exclusion Order be made?
For the court to make an Alcohol Exclusion Order, a person must have been found guilty of a ‘relevant offence’. A ‘relevant offence’ is defined in Section 89DC of the Sentencing Act 1991 and includes the following categories of offence:
- Murder and manslaughter;
- Injury offences such as unlawful assault, recklessly or intentional causing injury, and recklessly or intentionally causing serious injury;
- Sex offences.
When must an order be made?
Under section 89DE of the Sentencing Act 1991, upon a person being convicted of a relevant offence a court must make an Alcohol Exclusion Order if it is satisfied that the offender was:
- intoxicated at the time of the offending; and
- the intoxication significantly contributed to the offending.
Order can be made even where no conviction was recorded
It is important to note that under Section 105 of the Sentencing Act 1991, a ‘conviction’ also includes a finding of guilt that was made without conviction
Where can Alcohol Exclusion Order not be made?
An Alcohol Exclusion Order cannot be made in circumstances where the offender has already been subject to an order with respect to the same matter.
Who seeks the order?
Normally an order is sought by the prosecution, however the court does have the ultimate discretion to make an order on its own motion, if it is satisfied that the above requirements are met.
What is a ‘significant contribution’?
Whether an offender was intoxicated at the time of the offence, and whether the intoxication ‘significantly’ contributed to the offending conduct, is a matter for the prosecution to prove. If the threshold of a ‘significant contribution’ cannot be reached, then an order cannot be made.
The threshold of ‘significant contribution’ is not defined in the legislation and will be looked at globally taking into account the surrounding circumstances of the offending, to come to a determination with respect to this element.
Order can include exemptions
If an order is made by the court, under Section 89DE(5) of the Sentencing Act 1991, the court has the power to allow exemptions to the ordinary conditions prohibiting attendance at a licenced venue and essentially allow the person to enter or remain in a specified place for a specified time (despite the order), so long as the court is satisfied that:
- there is a good reason as to why the person should be allowed to enter or remain in that specified place; and
- it is appropriate to do so in all the circumstances.
The onus is on the offender to satisfy the court with respect to both of the above requirements. A court will generally require evidence to be produced to support an argument for exemptions to be included on an order.
Varying an Alcohol Exclusion Order
If an Alcohol Exclusion Order is made against a person by a court, the person can apply back to the court under Section 89DG of the Sentencing Act 1991, to have the order varied. Such an application can only be made in circumstances where:
- The court is satisfied that new facts and circumstances have arisen since the making of the Alcohol Exclusion Order that make it appropriate that it be varied; and
- The court is satisfied that there is a good reason why the person should (or should not) be allowed to enter a specified licenced premises; and
- The court considers it appropriate in all the circumstances to make the variation.
It is important to note that an application to vary an Alcohol Exclusion Order is not an application to have it revoked entirely. The court can only make the following changes to the order:
- Impose a new exemption on an Alcohol Exclusion Order; or
- Vary/remove an existing exemption on an Alcohol Exclusion Order.
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