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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Recidivist and Repeat Offenders)
Bill 2017
A BILL FOR
An Act to amend the
Bail
Act 1985
; the
Criminal
Law (High Risk Offenders) Act 2015
; the
Criminal
Law (Sentencing) Act 1988
; and the
Sentencing
Act 2017
.
Contents
Part 2—Amendment of Bail
Act 1985
4Amendment of section 10A—Presumption
against bail in certain cases
Part 3—Amendment
of Criminal Law (High Risk Offenders) Act 2015
5Amendment of section 3—Object of
Act
6Amendment of section
4—Interpretation
7Amendment of section 5—Meaning of high
risk offender
8Amendment of section 6—Application of
Act
6AModification of
Act in relation to youths
10Amendment of section
7—Proceedings
Part 4—Amendment of Criminal Law
(Sentencing) Act 1988
12Amendment of section
21—Application
13Amendment of section
23—Orders to protect safety of community
14Amendment of section 23A—Discharge of
detention order under section 23
15Amendment of section 24—Release on
licence
16Amendment of section 25A—Inquiries by
medical practitioners
17Amendment of section
29—Regulations
Part 5—Amendment
of Sentencing Act 2017
19Amendment of section 56—Application of
this Division
20Amendment of section 57—Orders to
protect safety of community
21Amendment of section 58—Discharge of
detention order under section 57
22Amendment of section 59—Release on
licence
23Amendment of section 62—Inquiries by
medical practitioners
24Amendment of section
67—Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Recidivist and Repeat
Offenders) Act 2017.
(1) Subject to
subsection (2)
, this Act will come into operation on the day on which it is assented to
by the Governor.
(2)
Part 5
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 Bail Act 1985
4—Amendment
of section 10A—Presumption against bail in certain
cases
Section 10A(2), definition of prescribed
applicant—after paragraph (e) insert:
or
(f) an applicant who has been declared to be a recidivist young offender
under section 20C of the
Criminal
Law (Sentencing) Act 1988
or section 55 of the
Sentencing
Act 2017
; or
(g) an applicant who is a serious repeat offender under section 20B of the
Criminal
Law (Sentencing) Act 1988
or within the meaning of Part 3 Division 4 of the
Sentencing
Act 2017
.
Part 3—Amendment
of Criminal Law (High Risk Offenders)
Act 2015
5—Amendment
of section 3—Object of Act
Section 3—delete "serious sexual offenders and serious violent
offenders" and substitute:
certain defined categories of offenders
6—Amendment
of section 4—Interpretation
(1) Section 4—after the definition of prisoner
insert:
recidivist young offender means a person who has been
declared to be a recidivist young offender under section 20C of the
Criminal
Law (Sentencing) Act 1988
or section 55 of the
Sentencing
Act 2017
;
(2) Section 4—after the definition of serious offence of
violence insert:
serious repeat offender means a person who is a serious
repeat offender under section 20B of the
Criminal
Law (Sentencing) Act 1988
or within the meaning of Part 3 Division 4 of the
Sentencing
Act 2017
;
7—Amendment
of section 5—Meaning of high risk offender
Section 5—after paragraph (d) insert:
or
(e) a serious repeat offender who is serving a sentence of imprisonment;
or
(f) a recidivist young offender who is serving a sentence of detention or
imprisonment.
8—Amendment
of section 6—Application of Act
(1) Section 6—delete "This" and substitute:
Subject to this section, this
(2) Section 6—after its present contents as amended by this section
(now to be designated as subsection (1)) insert:
(2) This Act applies in relation to a youth who is a recidivist young
offender (with any modifications set out in section 6A or prescribed by
regulations made in accordance with that section).
After section 6 insert:
6A—Modification of Act in relation to
youths
(1) In applying a
provision of this Act to a youth serving a sentence of
detention—
(a) a reference to the CE is to be read as a reference to the chief
executive of the administrative unit of the Public Service that is responsible
for assisting a Minister in the administration of the
Youth
Justice Administration Act 2016
; and
(b) a reference to a community corrections officer is to be read as a
reference to a community youth justice officer under the
Youth
Justice Administration Act 2016
; and
(c) a reference to custody as a prisoner or imprisonment is to be read as
a reference to detention; and
(d) a reference to a prison is to be read as a reference to a training
centre; and
(e) a reference to the Parole Board is to be read as a reference to the
Training Centre Review Board; and
(f) a reference to the presiding member of the Parole Board is to be read
as a reference to a member of the Training Centre Review Board designated, in
writing, by the Attorney-General for the purposes of this paragraph;
and
(g) a reference to the deputy presiding member of the Parole Board is to
be read as a reference to a member of the Training Centre Review Board
designated, in writing, by the Attorney-General for the purposes of this
paragraph; and
(h) a reference to a magistrate is to be read as a reference to a
magistrate or judge of the Youth Court.
(2) The regulations—
(a) may prescribe
further modifications of this Act in relation to a youth or a class of youths;
and
(b) without limiting
paragraph (a)
, may, in relation to any specified class of youths serving a sentence of
detention—
(i) specify that a modification set out in
subsection (1)
will not apply; or
(ii) prescribe a modification that will apply to the specified class
instead of a modification set out in
subsection (1)
.
10—Amendment
of section 7—Proceedings
(1) Section 7(3)—after paragraph (b) insert:
or
(c) if the respondent is a serious repeat offender or a recidivist young
offender—an assessment of the likelihood of the respondent committing a
further offence of any kind that resulted in the respondent becoming a serious
repeat offender or recidivist young offender (as the case may be).
(2) Section 7(6)(a)—delete paragraph (a) and substitute:
(a) the likelihood of the respondent committing—
(i) if the respondent is a serious sexual offender—a further serious
sexual offence; or
(ii) if the respondent is a serious violent offender—a further
serious offence of violence; or
(iii) if the respondent is a serious repeat offender or a recidivist young
offender—a further offence of any kind that resulted in the respondent
becoming a serious repeat offender or recidivist young offender (as the case may
be),
if not supervised under the order;
The amendments to the
Criminal
Law (High Risk Offenders) Act 2015
effected by this Act apply in relation to a person serving a sentence of
imprisonment or detention on or after the commencement of this Part (regardless
of when the relevant offence was committed).
Part 4—Amendment
of Criminal Law (Sentencing)
Act 1988
12—Amendment
of section 21—Application
Section 21(2)—after "
Young
Offenders Act 1993
" insert:
or in relation to a recidivist young offender (as defined in section
23)
13—Amendment
of section 23—Orders to protect safety of community
(1) Section 23(1), definition of person to whom this section
applies, (b)—delete paragraph (b) and substitute:
(ab) a serious repeat offender convicted of an offence by the Supreme
Court; or
(b) a person remanded by the District Court, the Magistrates Court or the
Youth Court under subsection (2) to be dealt with by the Supreme Court under
this section; or
(2) Section 23(1)—after the definition of person to whom this
section applies insert:
prescribed offender means a serious repeat offender or a
recidivist young offender;
recidivist young offender means a person who has been
declared to be a recidivist young offender under section 20C;
(3) Section 23(1)—after the definition of relevant
offence insert:
serious repeat offender means a person who is a serious
repeat offender under section 20B;
(4) Section 23(1), definition of unwilling—delete the
definition and substitute:
unwilling—
(a) a person to whom this section applies will be regarded as unwilling to
control sexual instincts if there is a significant risk that the person would,
given an opportunity to commit a relevant offence, fail to exercise appropriate
control of the person's sexual instincts; and
(b) a person to whom this section applies will be regarded as unwilling to
control violent impulses if there is a significant risk that the person would,
in circumstances that are reasonably likely to arise, fail to exercise
appropriate control of the person's violent impulses.
(5) Section 23(2) and (2a)—delete subsections (2) and (2a) and
substitute:
(a) a person is convicted of a relevant offence in proceedings before the
District Court or Magistrates Court; or
(b) a prescribed offender is convicted of an offence in proceedings before
the District Court, the Magistrates Court or the Youth Court,
the court will, if the court is of the opinion that the defendant should be
dealt with under this section or if the prosecutor applies to have the defendant
dealt with under this section, instead of sentencing the defendant itself,
remand the defendant, in custody or on bail, to appear before the Supreme Court
to be dealt with under this section.
(2a) The Attorney-General may, while a person who has been convicted of a
relevant offence, or a prescribed offender, remains in custody serving a
sentence of imprisonment or detention, apply to the Supreme Court to have the
person dealt with under this section.
(6) Section 23(2b)—delete "serving a sentence of
imprisonment"
(7) Section 23(2b)—after "on parole" insert:
or for release from custody in a training centre or other institution, as
the case may be
(8) Section 23(3)—delete subsection (3) and substitute:
(3) If the Attorney-General makes an application under subsection (2a) in
respect of a person who is in prison serving a sentence of imprisonment or is in
custody in a training centre or other institution—
(a) the person may not apply for parole or for release from custody until
the application under subsection (2a) is determined; and
(b) an application for parole or release from custody made by the person
before the making of the application under subsection (2a) is stayed until the
application under subsection (2a) is determined.
(3a) The Supreme Court may, if the Attorney-General has made an
application under subsection (2a) in respect of a person who is in prison
serving a sentence of imprisonment or is in custody in a training centre or
other institution, make an interim order that the person is to remain in custody
pending determination by the Supreme Court as to whether to make an order under
this section that the person be detained in custody until further
order.
(3b) 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—
(a) if the person is a prescribed offender—whether the person is
incapable of controlling, or unwilling to control, the person's sexual instincts
or violent impulses; or
(b) in any other case—whether the person is incapable of
controlling, or unwilling to control, the person's sexual instincts.
(9) Section 23(6)—after "relevant offence," insert:
or for an offence that resulted in the person becoming a prescribed
offender,
14—Amendment
of section 23A—Discharge of detention order under
section 23
Section 23A(2)—delete subsection (2) and substitute:
(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—
(a) if the person is a prescribed offender (within the meaning of section
23)—whether the person is incapable of controlling, or unwilling to
control, the person's sexual instincts or violent impulses; or
(b) in any other case—whether the person is incapable of
controlling, or unwilling to control, the person's sexual instincts.
15—Amendment
of section 24—Release on licence
Section 24(1a)—delete subsection (1a) and substitute:
(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 —
(a) if the person is a prescribed offender (within the meaning of section
23)—whether the person is incapable of controlling, or unwilling to
control, the person's sexual instincts or violent impulses; or
(b) if any other case—whether the person is incapable of
controlling, or unwilling to control, the person's sexual instincts.
16—Amendment
of section 25A—Inquiries by medical practitioners
Section 25A—delete "on whether the person is incapable of
controlling, or unwilling to control, his or her sexual instincts"
17—Amendment
of section 29—Regulations
Section 29(a)—delete "in consequence of being found to be incapable
of controlling his or her sexual instincts"
(1) Part 2 Division 3 of the
Criminal
Law (Sentencing) Act 1988
, as amended by this Part, applies in relation to a person regardless of
when the relevant offence or the offence that resulted in the person becoming a
serious repeat offender or a recidivist young offender (as the case may be) was
committed or when the person was sentenced for that offence.
(2) The Supreme Court may make an interim order under section 23(3a) of
the
Criminal
Law (Sentencing) Act 1988
, as inserted by
section 13
of this Act, in relation to a person regardless of whether the
Attorney-General made the application under section 23(2a) of that Act
before or after the commencement of
section 13
of this Act.
Part 5—Amendment
of Sentencing Act 2017
19—Amendment
of section 56—Application of this Division
Section 56(2)—after "
Young
Offenders Act 1993
" insert:
or in relation to a recidivist young offender (as defined in section
57)
20—Amendment
of section 57—Orders to protect safety of community
(1) Section 57(1), definition of person to whom this section
applies, (b)—delete paragraph (b) and substitute:
(ab) a serious repeat offender convicted of an offence by the Supreme
Court; or
(b) a person remanded by the District Court, the Magistrates Court or the
Youth Court under subsection (2) to be dealt with by the Supreme Court under
this section; or
(2) Section 57(1)—after the definition of person to whom this
section applies insert:
prescribed offender means a serious repeat offender or a
recidivist young offender;
recidivist young offender means a person who has been
declared to be a recidivist young offender under section 20C of the
Criminal
Law (Sentencing) Act 1988
or under section 55 of this Act;
(3) Section 57(1)—after the definition of relevant
offence insert:
serious repeat offender means a person who is a serious
repeat offender within the meaning of Division 4;
(4) Section 57(1), definition of unwilling—delete the
definition and substitute:
unwilling—
(a) a person to whom this section applies will be regarded as unwilling to
control sexual instincts if there is a significant risk that the person would,
given an opportunity to commit a relevant offence, fail to exercise appropriate
control of the person's sexual instincts; and
(b) a person to whom this section applies will be regarded as unwilling to
control violent impulses if there is a significant risk that the person would,
in circumstances that are reasonably likely to arise, fail to exercise
appropriate control of the person's violent impulses.
(5) Section 57(2) and (3)—delete subsections (2) and (3) and
substitute:
(a) a person is convicted of a relevant offence in proceedings before the
District Court or Magistrates Court; or
(b) a prescribed offender is convicted of an offence in proceedings before
the District Court, the Magistrates Court or the Youth Court,
the court will, if the court is of the opinion that the defendant should be
dealt with under this section or if the prosecutor applies to have the defendant
dealt with under this section, instead of sentencing the defendant itself,
remand the defendant, in custody or on bail, to appear before the Supreme Court
to be dealt with under this section.
(3) The Attorney-General may, while a person who has been convicted of a
relevant offence, or a prescribed offender, remains in custody serving a
sentence of imprisonment or detention, apply to the Supreme Court to have the
person dealt with under this section.
(6) Section 57(4)—delete "serving a sentence of
imprisonment"
(7) Section 57(4)—after "on parole" insert:
or for release from custody in a training centre or other institution, as
the case may be
(8) Section 57(5) and (6)—delete subsections (5) and (6) and
substitute:
(5) If the Attorney-General makes an application under subsection (3) in
respect of a person who is in prison serving a sentence of imprisonment or is in
custody in a training centre or other institution—
(a) the person may not apply for parole or for release from custody until
the application under subsection (3) is determined; and
(b) an application for parole or release from custody made by the person
before the making of the application under subsection (3) is stayed until the
application under subsection (3) is determined.
(6) The Supreme Court may, if the Attorney-General has made an application
under subsection (3) in respect of a person who is in prison serving a sentence
of imprisonment or is in custody in a training centre or other institution, make
an interim order that the person is to remain in custody pending determination
by the Supreme Court as to whether to make an order under this section that the
person be detained in custody until further order.
(6a) 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—
(a) if the person is a prescribed offender—whether the person is
incapable of controlling, or unwilling to control, the person's sexual instincts
or violent impulses; or
(b) in any other case—whether the person is incapable of
controlling, or unwilling to control, the person's sexual instincts.
(9) Section 57(12)—after "relevant offence," insert:
or for an offence that resulted in the person becoming a prescribed
offender,
21—Amendment
of section 58—Discharge of detention order under section
57
Section 58(2)—delete subsection (2) and substitute:
(2) The Supreme
Court must, before determining an application under this section for the
discharge of an order for detention under section 57, 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—
(a) if the person is a prescribed offender (within the meaning of
section 57)—whether the person is incapable of controlling, or
unwilling to control, the person's sexual instincts or violent impulses;
or
(b) in any other case—whether the person is incapable of
controlling, or unwilling to control, the person's sexual instincts.
22—Amendment
of section 59—Release on licence
Section 59(2)—delete subsection (2) and substitute:
(2) 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 —
(a) if the person is a prescribed offender (within the meaning of
section 57)—whether the person is incapable of controlling, or
unwilling to control, the person's sexual instincts or violent impulses;
or
(b) in any other case—whether the person is incapable of
controlling, or unwilling to control, the person's sexual instincts.
23—Amendment
of section 62—Inquiries by medical practitioners
Section 62—delete "on whether the person is incapable of controlling,
or unwilling to control, the person's sexual instincts"
24—Amendment
of section 67—Regulations
Section 67(a)—delete "in consequence of being found to be incapable
of controlling the person's sexual instincts"
Part 3 Division 5 of the
Sentencing
Act 2017
, as amended by this Part, applies in relation to a person regardless of
when the relevant offence or the offence that resulted in the person becoming a
serious repeat offender or a recidivist young offender (as the case may be) was
committed or when the person was sentenced for that offence.