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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Sentencing) (Dangerous Offenders) Amendment
Bill 2007
A BILL FOR
An Act to amend the Criminal Law (Sentencing)
Act 1988.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal Law (Sentencing)
Act 1988
4 Amendment of section
3—Interpretation
5 Amendment of section 10—Matters to be
considered by sentencing court
6 Amendment of section 11—Imprisonment
not to be imposed except in certain circumstances
7 Amendment of section
23—Offenders incapable of controlling, or unwilling to control, sexual
instincts
8 Amendment of section 32—Duty of court to fix or extend
non-parole periods
9 Insertion of Part 3 Division 3
Division 3—Dangerous
offenders
33 Interpretation
33A Dangerous
offenders
33B Division does not affect Governor's
powers etc in relation to parole
10 Transitional provision
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Sentencing) (Dangerous
Offenders) Amendment Act 2007.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Criminal Law (Sentencing)
Act 1988
4—Amendment of
section 3—Interpretation
Section 3(1), definition of sentence, (c)—delete "or
extending" and substitute:
, extending or negating
5—Amendment of
section 10—Matters to be considered by sentencing
court
(1) Section 10(1)—after paragraph (e) insert:
(eaa) the need to give proper effect to the policy stated in
subsection (1b);
(2) Section 10(1)(i)—delete paragraph (i)
(3) Section 10—after subsection (1) insert:
(1a) However, a court, in determining sentence for an offence, must
disregard any mandatory minimum non-parole period prescribed in respect of the
sentence under this Act or another Act.
(1b) A primary policy of the criminal law is to protect the safety of the
community.
6—Amendment of
section 11—Imprisonment not to be imposed except in certain
circumstances
Section 11(1)(b)—delete "primary policy stated in section 10(2)"
and substitute:
policies of the criminal law stated in section 10
7—Amendment of
section 23—Offenders incapable of controlling, or unwilling to control,
sexual instincts
Section 23—after subsection (2a) insert:
(2b) The Attorney-General may make an application under
subsection (2a) in respect of a person serving a sentence of imprisonment
whether or not an application to the Supreme Court to have the person dealt with
under this section has previously been made (but, if a previous application has
been made, a further application cannot be made more than 12 months before
the person is eligible to apply for release on parole).
8—Amendment of
section 32—Duty of court to fix or extend non-parole
periods
(1) Section 32(5)—after paragraph (a) insert:
(ab) if a person is subject to a sentence of life imprisonment for an
offence of murder, any non-parole period fixed in relation to the sentence must
be at least 20 years, unless the court is of the opinion that some lesser
period is appropriate because of the exceptional circumstances surrounding the
offence;
(2) Section 32(5)—after paragraph (b) insert:
(ba) if a person is subject to a sentence for a serious offence against
the person, any non-parole period fixed in relation to the sentence must be at
least four-fifths the length of the sentence, unless the court is of the opinion
that some lesser period is appropriate because of the exceptional circumstances
surrounding the offence;
(3) Section 32—after subsection (5) insert:
(5a) If a person is sentenced under section 18A to the 1 penalty for
a number of offences and a mandatory minimum non-parole period is prescribed in
respect of the sentence for 1 or more of those offences, the non-parole period
fixed in relation to the sentence imposed under that section must be at least
the length of the prescribed mandatory minimum non-parole period.
(4) Section 32(10)—after paragraph (b) insert:
(ba) a reference to an offence of murder
includes—
(i) an offence of conspiracy to murder; and
(ii) an offence of aiding, abetting, counselling or procuring the
commission of murder; and
(5) Section 32(10)—after paragraph (c) insert:
(d) a serious offence against the person
means—
(i) a major indictable offence (other than an offence of murder) that
results in the death of the victim or the victim suffering total incapacity;
or
(ii) a conspiracy to commit an offence referred to in
subparagraph (i); or
(iii) aiding, abetting, counselling or procuring the commission of an
offence referred to in subparagraph (i); and
(e) a victim suffers total incapacity if the victim is
permanently physically or mentally incapable of independent function.
9—Insertion of
Part 3 Division 3
After section 32 insert:
Division 3—Dangerous offenders
33—Interpretation
(1) In this Division—
serious sexual offence means any of the following offences
where the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years:
(a) —
(i) an offence under section 48, 49, 56, 58, 59, 60, 63, 63B, 66, 67,
68, 72 or 74 of the Criminal Law Consolidation Act 1935;
or
(ii) an attempt to commit or an assault with intent to commit any of those
offences;
(b) an offence against the law of another State or a Territory
corresponding to an offence referred to in paragraph (a).
(2) For the purposes of this Division—
(a) an offence will be taken to have been committed in prescribed
circumstances if, in the opinion of the
Attorney-General—
(i) the offence was committed in the course of deliberately and
systematically inflicting severe pain on the victim; or
(ii) there are reasonable grounds to believe that the offender also
committed a serious sexual offence against or in relation to the victim of the
offence in the course of, or as part of the events surrounding, the commission
of the offence (whether or not the offender was also convicted of the serious
sexual offence); and
(b) a reference to an offence of murder
includes—
(i) an offence of conspiracy to murder; and
(ii) an offence of aiding, abetting, counselling or procuring the
commission of murder.
(3) No proceeding for judicial review or for a declaration, injunction,
writ, order or other remedy may be brought to challenge or question a decision
of the Attorney-General under subsection (2).
33A—Dangerous offenders
(1) If a person has been convicted, whether before or after the
commencement of this Division, of an offence of murder and the offence was
committed in prescribed circumstances, the Attorney-General may, while the
person remains in prison serving a sentence of imprisonment, apply to the Full
Court to have the person declared to be a dangerous offender.
(2) An application cannot be made under subsection (1) more than
12 months before the person is eligible to apply for release on
parole.
(3) The Court must give the person at least 14 days written notice of
the date on which it intends to conduct the proceedings to determine the
application.
(4) If the Court is of the opinion that a report from the Parole Board may
assist the Court in determining an application under this section, the Court may
direct the Board to hold an inquiry and report to the Court.
(5) The Parole Board may exercise such powers as are conferred on the
Board under Part 6 of the Correctional Services Act 1982 as are
necessary or expedient for, or incidental to, the purposes of an inquiry under
subsection (4).
(6) Each of the following persons is entitled to appear and be heard in
proceedings under this section and must be afforded a reasonable opportunity to
call and give evidence, to examine or cross-examine witnesses, and to make
submissions to the Court:
(a) the person (personally or by counsel);
(b) the Director of Public Prosecutions;
(c) the Commissioner for Victims' Rights.
(7) The paramount consideration of the Court when determining an
application under this section must be to protect the safety of the community
(whether as individuals or in general).
(8) The Court may also take the following matters into consideration when
determining an application under this section:
(a) any relevant remarks made by the court in passing sentence;
(b) the degree to which the person has shown contrition for the relevant
offence;
(c) the behaviour of the person while in prison;
(d) any rehabilitation of the person while in prison;
(e) the willingness of the person to co-operate with an inquiry (if any)
by the Parole Board under this section;
(f) any reports tendered, and submissions made, to the Court under this
section;
(g) the likelihood of the person committing a serious sexual offence, an
offence of murder or some other serious offence of a violent nature should the
person be released from prison;
(h) whether the non-parole period imposed by the court when sentencing the
person for the relevant offence was reduced as a consequence of the commencement
of the Statutes Amendment (Truth in Sentencing) Act 1994;
(i) the character, antecedents, age, means and physical or mental
condition of the person;
(j) the probable circumstances of the person after release from
prison;
(k) any other matters that the Court thinks are relevant.
(9) If the Court is satisfied, on the balance of probabilities, that the
release from prison of the person to whom the application relates would involve
a serious danger to the community or a member of the community, the Court
must—
(a) declare the person to be a dangerous offender; and
(b) order that the non-parole period fixed in respect of the sentence of
imprisonment for the murder be negated.
(10) A person who has been declared to be a dangerous offender under this
section—
(a) will serve his or her sentence of imprisonment as if the fixing of a
non-parole period in respect of that sentence of imprisonment had been declined
by order of the court under section 32; and
(b) may not make an application under that section for the fixing of a
non-parole period for at least 12 months after having been so
declared.
33B—Division does not affect Governor's powers etc
in relation to parole
Nothing in this Division has any effect on the powers and authorities
conferred on, or vested in, the Governor in relation to parole.
An amendment made by Part 2 of this Act to the Criminal Law
(Sentencing) Act 1988 applies whether the offence to which a sentence
of imprisonment or non-parole period relates was committed before or after the
commencement of that Part.