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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Sentencing) (Sentences of Indeterminate
Duration) Amendment Bill 2013
A BILL FOR
An Act to amend the Criminal
Law (Sentencing) Act 1988.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment
of Criminal Law (Sentencing) Act 1988
4Amendment of section
23—Offenders incapable of controlling, or unwilling to control, sexual
instincts
5Insertion of section
23A
23ADischarge of detention
order under section 23
6Amendment of section 24—Release on
licence
7Amendment of section 25—Court may obtain
reports
8Insertion of section
25A
25AInquiries by medical
practitioners
9Insertion of Schedule 2
Schedule 2—Reconsideration of
authorisations to release on licence under
section 24
1Reconsideration of authorisations to release on
licence under section 24
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Sentencing) (Sentences of
Indeterminate Duration) Amendment Act 2013.
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 23—Offenders incapable of controlling, or unwilling to control,
sexual instincts
(1) Section 23(1), definition of relevant
offence—after paragraph (c) insert:
or
(d) an offence of failing to comply with a reporting obligation relating
to reportable contact with a child without a reasonable excuse where the
defendant is a registrable offender within the meaning of the Child
Sex Offenders Registration Act 2006;
(2) Section 23(3) to (5)—delete subsections (3) to (5) (inclusive)
and substitute:
(3) The Supreme
Court must, before determining whether to make an order that a person to whom
this section applies be detained in custody until further order, direct that at
least 2 legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of a person to whom
this section applies and report to the Court on whether the person is incapable
of controlling, or unwilling to control, his or her sexual instincts.
(4) The Supreme Court may order that a person to whom this section applies
be detained in custody until further order if satisfied that the order is
appropriate.
(5) The paramount consideration of the Supreme Court in determining
whether to make an order that a person to whom this section applies be detained
in custody until further order must be the safety of the community.
(5a) The Supreme Court
must also take the following matters into consideration in determining whether
to make an order that a person to whom this section applies be detained in
custody until further order:
(a) the reports of the medical practitioners (as directed and nominated
under
subsection (3))
furnished to the Court;
(b) any relevant evidence or representations that the person may desire to
put to the Court;
(c) any report required by the Court under section 25;
(d) any other matter that the Court thinks relevant.
(5b) A copy of a report furnished to the Supreme Court under
subsection (5a) must
be given to each party to the proceedings or to counsel for those
parties.
(5c) If a person to whom this section applies refuses to cooperate with an
inquiry or examination for the purposes of this section, the Supreme Court may,
if satisfied that the order is appropriate, order that the person be detained in
custody until further order having given—
(a) paramount consideration to the safety of the community; and
(b) consideration to any relevant evidence and representations that the
person may desire to put to the Court.
(3) Section 23(9)—delete "six months" and substitute:
12 months
(4) Section 23(11) and (12)—delete subsections (11) and
(12)
After section 23 insert:
23A—Discharge of detention order under section
23
(1) Subject to this Act, a person subject to an order for detention under
section 23 will not be released from detention under that section until the
Supreme Court, on application by the Director of Public Prosecutions or the
person, discharges the order for detention.
(2) The Supreme
Court must, before determining an application under this section for the
discharge of an order for detention under section 23, direct that at least 2
legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of the person
subject to the order and report to the Court on whether the person is incapable
of controlling, or unwilling to control, his or her sexual instincts.
(3) The paramount consideration of the Supreme Court when determining an
application for the discharge of an order for detention under section 23 must be
the safety of the community.
(4) The Supreme
Court must also take the following matters into consideration when determining
an application for the discharge of an order for detention under section
23:
(a) the reports of the medical practitioners (as directed and nominated
under
subsection (2))
furnished to the Court;
(b) any relevant evidence or representations that the person may desire to
put to the Court;
(c) a report furnished to the Court by the Training Centre Review Board or
Parole Board (as the case may be) in accordance with the direction of the Court
for the purposes of assisting the Court to determine the application,
including—
(i) any opinion that the relevant Board may have about the effect the
discharge of the order may have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the order
is discharged;
(d) the reports resulting from the periodic reviews under
section 23(9) on the progress and circumstances of the person tendered to
the Court;
(e) any other report required by the Court under
section 25;
(f) any other matter that the Court thinks relevant.
(5) A copy of a report furnished to the Supreme Court under
subsection (4)
must be given to each party to the proceedings or to counsel for those
parties.
6—Amendment
of section 24—Release on licence
(1) Section 24—after subsection (1) insert:
(1a) The Supreme
Court must, before determining an application under this section for the release
on licence of a person detained in custody under this Division, direct that at
least 2 legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of the person and
report to the Court on whether the person is incapable of controlling, or
unwilling to control, his or her sexual instincts.
(1b) The paramount consideration of the Supreme Court when determining an
application under this section for the release on licence of a person detained
in custody under this Division must be the safety of the community.
(1c) The Supreme Court
must also take the following matters into consideration when determining an
application under this section for the release on licence of a person detained
in custody under this Division:
(a) the reports of the medical practitioners (as directed and nominated
under
subsection (1a))
furnished to the Court;
(b) a report furnished to the Court by the appropriate board in accordance
with the direction of the Court for the purposes of assisting the Court to
determine the application, including—
(i) any opinion of the appropriate board on the effect that the release on
licence of the person would have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the person
is released on licence;
(c) the reports resulting from the periodic reviews under
section 23(9) on the progress and circumstances of the person tendered to
the Court;
(d) any other report required by the Court under
section 25;
(e) any other matter that the Court thinks relevant.
(1d) A copy of any report furnished to the Supreme Court under
subsection (1c) must
be given to each party to the proceedings or to counsel for those
parties.
(2) Section 24(2)—before "Court" first occurring insert:
Supreme
7—Amendment
of section 25—Court may obtain reports
Section 25(1)—after "this Division" insert:
or Schedule 2
After section 25 insert:
25A—Inquiries by medical
practitioners
Where, for the purposes of this Division or Schedule 2, the Supreme Court
directs that at least 2 legally qualified medical practitioners (to be nominated
by a prescribed authority) inquire into the mental condition of a person and
report to the Court on whether the person is incapable of controlling, or
unwilling to control, his or her sexual instincts, each medical practitioner so
nominated—
(a) must carry out an independent personal examination of the person;
and
(b) may have access to any evidence before the court by which the person
was convicted; and
(c) may obtain the assistance of a psychologist, social worker, community
corrections officer or any other person.
After Schedule 1 insert:
Schedule 2—Reconsideration of authorisations to
release on licence under section 24
1—Reconsideration of authorisations to release on
licence under section 24
(1) This clause applies to a person subject to an order for detention
under section 23 who, before the commencement of this clause, has been
authorised by the Supreme Court under section 24 to be released on
licence.
(2) After the
commencement of this clause, the Supreme Court may, on application by the
Director of Public Prosecutions—
(a) cancel the release on licence of a person to whom this clause applies;
or
(b) confirm the release on licence of a person to whom this clause
applies.
(3) For the purposes of
proceedings under this clause, the Director of Public Prosecutions may apply to
a justice for a warrant for the apprehension and detention of the person pending
determination of the proceedings.
(4) A justice must, on application under
subclause (3), issue
a warrant for the apprehension and detention of a person unless it is apparent,
on the face of the application, that no reasonable grounds exist for the issue
of the warrant.
(5) The Supreme
Court must, before determining an application under this clause, direct that at
least 2 legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of the person and
report to the Court on whether the person is incapable of controlling, or
unwilling to control, his or her sexual instincts.
(6) The paramount consideration of the Supreme Court when determining an
application under this clause must be the safety of the community.
(7) The Supreme Court
must also take the following matters into consideration when determining an
application under this clause:
(a) the reports of the medical practitioners (as directed and nominated
under
subclause (5))
furnished to the Court;
(b) a report furnished to the Court by the appropriate board in accordance
with the direction of the Court for the purposes of assisting the Court to
determine the application;
(c) any other report required by the Court under
section 25;
(d) any other matter that the Court thinks relevant.
(8) A copy of any report furnished to the Supreme Court under
subclause (7) must
be given to each party to the proceedings or to counsel for those
parties.
(9) For the purposes of this clause—
appropriate board, in relation to proceedings under this
clause, means—
(a) if the person the subject of the proceedings is being detained in a
training centre, or has been released on licence from a training
centre—the Training Centre Review Board;
(b) in any other case—the Parole Board.