Enter Casino While Subject to an Exclusion Order

– sections 72 and 74 of the Casino Control Act 1991

CasinoCertain authorities may prohibit a person from entering a casino under an exclusion order pursuant to sections 72 and 74 of the Casino Control Act 1991 (Vic) (‘the Act’). An exclusion order can be given orally or in writing, however oral notice lapses after 14 days.

Entering a casino whilst subject to an exclusion order is an offence pursuant to section 77(1) of the Act.

Examples of Enter Casino While Subject to an Exclusion Order
  • A casino employee gives a person is oral notice that they are prohibited from entering a casino, and the person re-enters the casino 8 days later.
  • A person makes an application to a casino to make a written order prohibiting them from entering the casino. The casino makes the written order and the person re-enters the casino a month later.
Questions in cases like this
  • Was an exclusion order made?
  • Was the exclusion order an oral order or a written order?
  • If the exclusion order was an oral order, has 14 days elapsed?
What are some of the possible defences to Enter Casino While Subject to an Exclusion Order?

Some defences to this offence include:

  • No exclusion order was made;
  • The exclusion order was an oral order and more than 14 days has elapsed since it was made;
  • The exclusion order was made to an authorised person (i.e. a police officer or an inspector); or
  • The person subject to the exclusion order was honestly and reasonably mistaken and thought that no such order existed.
Maximum penalty and court that deals with this charge

This offence carries a maximum penalty of 20 penalty units (a $3,223.80 fine).1

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.2 As such, the maximum fine for this offence is liable to change.

As a summary offence, this charge is predominantly heard in the Magistrates’ Court.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

What is the legal definition of Enter Casino While Subject to an Exclusion Order?

The legal definition of Enter Casino While Subject to an Exclusion Order is as follows:

  1. The Commission or a casino operator or the person for the time being in charge of a casino, may, by order given to a person orally or in writing, prohibit the person from entering or remaining in the casino.3
  • (1A) An oral order lapses after 14 days
  1. If the person is given an oral order and the person requires the order to be given in writing, the oral order is suspended while the order is put in writing (but only if the person remains available in the casino to be given the written order).
  • (2A) The Commission or a casino operator may give a written order under this section to a person, on the voluntary application of the person, prohibiting the person from entering or remaining in a casino.
  • (2B)An application under subsection (2A) must be in writing and signed by the applicant in the presence of a person authorised by the Commission to witness such an application.
  1. As soon as practicable after a casino operator gives a written order under this section, the operator must cause a copy of the order to be given to the Commission.
    Penalty: 50 penalty units.
  2. This section does not authorise the exclusion from the casino of an inspector or other authorised person, or a police officer.
  3. A function of the Commission under this section may be performed by any commissioner.

Call Doogue + George

Legislation

The legislation for the offence of Enter Casino While Subject to an Exclusion Order can be found in section 72 of the Casino Control Act 1991 (Vic).

Elements of the offence

The prosecution must prove:

  1. The Commission, a casino operator, a person for the time being in charge of a casino, or the Chief Commissioner of Police made an order prohibiting a person from entering a casino;
  2. If the order was an oral order, less than 14 days had elapsed since the making of the order;
  3. The excluded person was not an inspector or authorised person, or a police officer; and
  4. The excluded person re-entered the casino while prohibited under the order.

Element 1: The Commission, a casino operator, a person for the time being in charge of a casino or the Chief of Police made an order prohibiting a person from entering a casino
Only the Commission, a casino operator, a person for the time being in charge of a casino or the Chief Commissioner of Police can make an order prohibiting someone from entering a casino.

The Commission, a casino operator and a person for the time being in charge of a casino may make an order orally or in writing. The Chief Commissioner of Police must make an order in writing.4

‘The Commission’ means the Victorian Commission of Gambling and Liquor Regulation.5 Any ‘commissioner’ may perform the functions of the Commission.6 A person may be appointed as a commissioner under the appropriate provisions of the Gambling Regulation Act 2003 (Vic).7

A ‘casino operator’ is a person who holds a casino licence.8 Casino licenses are issued and regulated under Part II of the Act.9

The ‘person for the time being in charge of a casino’ is not defined in the Act. It appears to be a catch all term enabling the most senior casino staff member on duty at the time to make an order.

The Commission, a casino operator a person for the time being in charge of a casino may make an order orally or in writing. If the order is made orally, it lapses after 14 days.10 If an order is made in writing, it applies indefinitely.

If a person receives an oral order, they may require the order to be made in writing. If the person stays in the casino while the order is being made in writing, their oral order is suspended.11

A person may request an order be made prohibiting them from entering a casino.12 A ‘voluntary order’ of this kind must be in writing and signed by the applicant in the presence of a person authorised by the Commission to witness such an application.13

Element 2: If the order was an oral order, less than 14 days have elapsed since the making of the order
If the order is an oral order, the order only remains valid for 14 days after it is made.14 If a person re-enters a casino more than 14 days after they were excluded by oral order, they will not be guilty of this offence.

“Has more than 14 days elapsed since an oral exclusion order was made?”

Element 3: The excluded person was not an inspector or authorised person, or a police officer
Police officers, inspectors and authorised persons cannot be excluded from a casino under an exclusion order.

Element 4: The excluded person re-enters the casino
If elements 1-3 are satisfied, an excluded person will commit an offence if they re-enter a casino they a prohibited from entering under an exclusion order.

It is important to note that a person subject to a written exclusion order may appeal their order under s 73 of the Act if the Commission, a casino operator or a person for the time being in charge of a casino made the order.15 Written orders made by the Chief Commissioner of Police are not appellable.16

A person may appeal to the Commission within 28 days of the written exclusion order being made.

Sentencing in the Magistrates’ Courts

There were 43 cases (185 charges) of Enter Casino While Subject to an Exclusion Order that were heard in Victorian Magistrates’ Courts from 1 July 2013 to 30 June 2016. The sentences imposed were fine (67.4%), adjourned undertaking/discharge/dismissal (30.2%), and wholly suspended sentence (2.3%).

FineOf the financial penalties imposed, the heaviest fine was in the category $5,000 < $10,000 (12.2% aggregate). The majority fines were in the $500 < $1,000 category (27.1% for aggregate and 0.9% for non-aggregate).17

Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.18

Other important resources
Media Information:

 



[1] Casino Control Act 1991 (Vic) s 77
[2] http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/
[3] Note: Section 74 of the Act also enables the Chief Commissioner of Police to make an exclusion order.
[4] Casino Control Act 1991 (Vic) s 74
[5] Casino Control Act 1991 (Vic) s 3
[6] Casino Control Act 1991 (Vic) s 72(5)
[7] Gambling Regulation Act 2003 (Vic), Chapter 10 Part 1 Division 2
[8] Casino Control Act 1991 (Vic) s 3
[9] Casino Control Act 1991 (Vic) Part II
[10] Casino Control Act 1991 (Vic) s 721A)
[11] Casino Control Act 1991 (Vic) s 72(2)
[12] Casino Control Act 1991 (Vic) s 72(2A)
[13] Casino Control Act 1991 (Vic) s 72(2B)
[14] Casino Control Act 1991 (Vic) s 72(1A)
[15] Casino Control Act 1991 (Vic) s 73
[16] Casino Control Act 1991 (Vic) s 74(3)
[17] SAC Statistics – Casino Control Act 1991 (Vic) : s 77(1) – enter casino while subject to s72 exclusion order < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/91_47_77_1.html >
[18] Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >