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Probation of Offenders Act [Cap 22]

LAWS OF FIJI

Ed. 1978

CHAPTER 22

PROBATION OF OFFENDERS

Ordinance No. 12 of 1952.
Act No. 24 of 1976.

AN ACT RELATING TO PROBATION OF OFFENDERS

[1st October, 1952.]

Short title

1. This Act may be cited as the Probation of Offenders Act.

Interpretation

2. In this Act, unless the context otherwise requires-

"probationer" means a person for the time being under supervision by virtue of a probation order;

"probation officer" means a probation officer appointed under the provisions of this Act and, in relation to any case where a court is of opinion that a probation order should be made but that it is impracticable to place the offender under the supervision of a probation officer appointed under the provisions of this Act, includes any person who consents and is appointed by the court to have the supervision of an offender;

"probation order" has the meaning assigned to it by section 3;

"probation period" means the period for which a probationer is placed under supervision by a probation order.

Probation

3. (1) Where a court by or before which a person is convicted of an offence (not being an offence punishable by death) is of opinion that having regard to the circumstances, including the nature of the offence and the character and home surroundings of the offender, it is expedient to do so, the court may, instead of sentencing him, make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer for a period to be specified in the order of not less than one year nor more than three years.

(2) A probation order shall name the area in which the offender resides or will reside and the offender shall (subject to the provisions of the Schedule relating to probationers who change their residence) be required to be under the supervision of a probation officer for that district. The order shall also name as the supervising court a court of a resident or second class magistrate within that district.

(3) Subject to the provisions of section 4, a probation order may in addition require the offender to comply during the whole or any part of the probation period with such requirements as the court, having regard to the circumstances of the case, considers necessary for securing the good conduct of the offender or for preventing a repetition by him of the same offence or the commission of other offences:

Provided that (without prejudice to the power of a court to make an order under the provisions of sections 164 or 165 of the Criminal Procedure Code) the payment of sums by way of damages shall not be included among the requirements of a probation order.
(Cap. 21)

(4) Without prejudice to the generality of subsection (3), a probation order may include requirements relating to the residence of the offender.

(5) Before making a probation order, the court shall explain to the offender in ordinary language the effect of the order (including any additional requirements proposed to be inserted therein under subsections (3) or (4), or under section 4, and that if he fails to comply therewith or commits another offence he will be liable to be sentenced for the original offence: and if the offender is not less than fourteen years of age the court shall not make the order unless he expresses his willingness to comply with the requirements thereof.

(6) The court by which a probation order is made shall give a copy of the order to the probation officer responsible for the supervision of the offender and to the offender, and the court shall, except where it is itself the supervising court, send to the clerk of the supervising court a copy of the order, together with such documents and information relating to the case as it considers likely to be of assistance to the supervising court.

Discharge, amendment and review of probation orders

4.-(1) The provisions of the Schedule shall have effect in relation to the discharge and amendment of probation orders.

(2) Where, under the following provisions of this Act, a probationer is sentenced for the offence for which he was placed on probation, the probation order shall cease to have effect.

Breach of requirements of probation order

5. -(1) If at any time during the probation period it appears on information to the supervising court that the probationer has failed to comply with any of the requirements of the order, the supervising court may issue a summons requiring the probationer to appear before it at the place and time specified therein or may, if the information is in writing and on oath, issue a warrant for his arrest.

(2) If it is proved to the satisfaction of the supervising court that the probationer has failed to comply with any of the requirements of the probation order, that court may, without prejudice to the continuance of the probation order, Impose on him a fine not exceeding twenty dollars or may-

(a) if the probation order was made by a magistrate of a class not higher than the supervising court, deal with the probationer, for the offence in respect of which the probation order was made, in any manner in which the supervising court could deal with him if it had just convicted him of that offence;

(b) if the probation order was made by the Supreme Court or a magistrate of a class higher than the supervising court, commit him to custody or release him on bail (with or without sureties) until he can be brought or appear before the court which made the order.

(3) Where the supervising court deals with the case as provided in paragraph (b) of subsection (2), then-

(a) the court shall send to the court which made the order a certificate signed by a magistrate of the supervising court certifying that the probationer has failed to comply with such of the requirements of the probation order as may be specified in the certificate, together with such other particulars of the case as may be desirable; and a certificate purporting to be so signed shall be admissible as evidence of the failure before the court which made the order;

(b) where the probationer is brought or appears before the court which made the order and it is proved to the satisfaction of that court that he has failed to comply with any of the requirements of the probation order, that court may deal with him for the offence in respect of which the probation order was made, in any manner in which the court could deal with him if he had just been convicted before that court of that offence.

Commission of further offence

6. -(1) If it appears to the supervising court that a person in whose case a probation order has been made has been convicted by a court in any part of Fiji of an offence committed during the probation period, the supervising court may issue a summons requiring the person to appear at the place and time specified or may, if the information is in writing and upon oath, issue a warrant for his arrest.

(2) A summons or warrant issued under this section shall direct the person so convicted to appear or to be brought-

(a) if the probation order was made by the Supreme Court or by a magistrate of a class higher than the supervising court, before the court which made the order;

(b) if the probation order was made by a magistrate of a class not higher than the supervising court, before the supervising court.

(3) Where it is proved to the satisfaction of the court which made the order or, in the case of a probation order made, by a magistrate of a class not higher than the supervising court, to the satisfaction of the supervising court that the probationer has been convicted and dealt with in respect of an offence committed during the probation period, such court may deal with him, for the offence for which the order was made, in any manner in which the court could deal with him if he had just been convicted by or before that court of that offence.

Effects of probation

7.-(1) Subject as hereinafter provided, a conviction of an offence for which an order is made under the provisions of this Act placing the offender on probation shall be deemed not to be a conviction for any purpose other than the purpose of the proceedings in which the order is made, and of any subsequent proceedings which may be taken against the offender under the foregoing provisions of this Act: Provided that where an offender, being not less than seventeen years of age at the time of his conviction of an offence for which he is placed on probation, is subsequently sentenced under this Act for that offence, the provisions of this subsection shall cease to apply to the conviction.

(2) Without prejudice to the foregoing provisions of this section, the conviction of an offender who is placed on probation shall in any event be disregarded for the purposes of any enactment which imposes any disqualification or disability upon convicted persons or authorises or requires the imposition of any such disqualification or disability.

(3) The foregoing provisions of this section shall not affect-

(a) any right of any such offender as aforesaid to appeal against his conviction or to rely thereon in bar of any subsequent proceedings for the same offence; or

(b) the re-vesting or restoration of any property in consequence of the conviction of any such offender.

Probation officers

8. There may be appointed as probation officer or officers for any Division of Fiji such person or persons as the Minister may determine.

Regulations

9. The Minister may make regulations regulating the qualifications and duties of probation officers.

Powers to be cumulative

10. All powers given by this Act shall be in addition to and not in derogation of any other powers conferred by or under any enactment and all such last mentioned powers may be exercised in the same manner and by the same authority as if this Act had not been enacted.

SCHEDULE

DISCHARGE AND AMENDMENT OF PROBATION ORDERS

DISCHARGE

1. The supervising court may, upon application made by the probation officer or by the probationer, discharge the order.

AMENDMENT

2.-(1) If the supervising court is satisfied that a probationer wishes to change, or without contravention of the probation order has changed his residence from the area named in the probation order to another district, the court may by order amend the probation order by substituting for the district named therein the district where the probationer proposes to reside or is residing and by substituting a resident magistrate's court within the new district as the supervising court:

Provided that if the probation order contains requirements which, in the opinion of the court, cannot be complied with unless the probationer continues to reside in the district named in the order, the court shall not amend the order as aforesaid unless, in accordance with the following provisions of this Schedule, it cancels those requirements or substitutes therefor other requirements which can be so complied with.

(2) Where a probation order is amended under the provisions of this paragraph, the court making the amendment shall send to the supervising court substituted in the order a copy of the order, together with such documents and information relating to the case as it considers likely to be of assistance to that court.

3. Without prejudice to the provisions of paragraph 2, the supervising court may, upon application made by the probation officer or by the probationer, by order amend a probation order by cancelling any of the requirements thereof or by inserting therein (either in addition to or in substitution for any such requirement) any requirement which could be included in the order if it were then being made by that court in accordance with the provisions of section 3 of this Act:

Provided that the court shall not amend a probation order by reducing the probation period, or by extending that period beyond the end of three years from the date of the original order.

GENERAL

4. Where the supervising court proposes to amend a probation order under the provisions of this Schedule, otherwise than on the application of the probationer, it shall summon him to appear before the court; and if the probationer is not less than fourteen years of age, the court shall not amend a probation order unless the probationer expresses his willingness to comply with the requirements of the order as amended:

Provided that this paragraph shall not apply to an order cancelling a requirement of the probation order or reducing the period of any requirement, or substituting a new district for the district named in the probation order.

5. On the making of an order discharging or amending a probation order, the clerk to the court shall forthwith give copies of the discharging or amending order to the probation officer; and the probation officer shall give a copy to the probationer:

Provided that if the order amends the probation order by substituting a new district for the district named in the probation order the copies of the order shall be sent to the clerk of the supervising court substituted in the order and he shall be responsible for giving copies of the order to the probation officer.

Controlled by Ministry of Social Welfare

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