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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law Consolidation (Supervision Requirements)
Amendment Bill 2015
A BILL FOR
An Act to amend the
Criminal
Law Consolidation Act 1935
; and to make related amendments to the
Child
Sex Offenders Registration Act 2006
and the
Victims
of Crime Act 2001
.
Contents
Part 2—Amendment of Criminal Law
Consolidation Act 1935
4Amendment of section
269A—Interpretation
6Amendment of section 269OA—Court may
direct defendant to surrender firearm etc
269PVariation of
supervision requirements
8Amendment of section 269Q—Report on
mental condition of defendant
269SPrinciple on
which court is to act
10Amendment of section 269T—Matters to
which court is to have regard
11Substitution of section 269U
269URevision of
supervision requirements
12Amendment of section 269V—Custody,
supervision and care
13Amendment of section 269VA—Effect of
supervening imprisonment
14Amendment of section
269Y—Appeals
15Amendment of section 269Z—Counselling of
next of kin and victims
Part 1—Related amendment to the
Child Sex Offenders Registration Act 2006
1Amendment of section
4—Interpretation
Part 2—Related amendment to the
Victims of Crime Act 2001
2Amendment of section 8—Right to
information
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law Consolidation (Supervision
Requirements) Amendment Act 2015.
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 Consolidation
Act 1935
4—Amendment
of section 269A—Interpretation
(1) Section 269A(1)—after the definition of authorised
person insert:
consumption of a drug includes—
(a) injection of the drug (either by the person to whom the drug is
administered or someone else); and
(b) inhalation of the drug; and
(c) any other means of introducing the drug into the body;
(2) Section 269A(1)—after the definition of defensible
insert:
dentist means a person registered under the Health
Practitioner Regulation National Law—
(a) to practise in the dental profession as a dentist (other than as a
student); and
(b) in the dentists division of that profession;
drug means alcohol or any other substance that is capable
(either alone or in combination with other substances) of influencing mental
functioning;
(3) Section 269A(1)—after the definition of judge
insert:
medical practitioner means a person registered under the
Health Practitioner Regulation National Law to practise in the medical
profession (other than as a student);
(4) Section 269A(1)—delete the definition of supervision
order and substitute:
supervision requirements means requirements applying to a
defendant under section 269O;
therapeutic—the consumption of a drug is to be regarded
as therapeutic if—
(a) the drug is prescribed by, and consumed in accordance with the
directions of, a medical practitioner or dentist; or
(b) the drug—
(i) is a drug of a kind available, without prescription, from registered
pharmacists; and
(ii) is consumed for a purpose recommended by the manufacturer and in
accordance with the manufacturer's instructions;
(5) Section 269A(1)—after the definition of victim
insert:
voluntary—consumption of a drug is to be regarded as
voluntary unless—
(a) the drug is administered against the will, or without the knowledge,
of the person who consumes it; or
(b) the consumption occurs accidentally; or
(c) the person who consumes the drug does so under duress, or as a result
of fraud or reasonable mistake; or
(d) the consumption is therapeutic.
5—Substitution
of section 269O
Section 269O—delete the section and substitute:
269O—Supervision requirements
(1) If a court
declares a defendant to be liable to supervision under this Part, the following
provisions apply:
(a) the defendant will be subject to supervision requirements in
accordance with this section;
(b) the supervision requirements will apply to the defendant
for—
(i) the period specified by the court as the period of imprisonment or
supervision (or the aggregate period of imprisonment and supervision) that
would, in the court's opinion, have been appropriate if the defendant had been
convicted of the offence of which the objective elements have been
established1; or
(ii) 2 years,
whichever is the greater (the limiting term);
(c) the defendant
will, on the making of the declaration of supervision, be committed to detention
under this Part for a period of 6 months or such longer period as the court may
order;
(d) if the
defendant is to be detained under this Part for a period that is less than the
limiting term, the defendant will, at the end of the period of detention, be
released on licence on the following conditions:
(i) a condition
prohibiting the defendant from possessing a firearm or ammunition (both within
the meaning of the
Firearms
Act 1977
) or any part of a firearm;
(ii) a condition
requiring the defendant to submit to such tests (including testing without
notice) for gunshot residue as may be reasonably required by a person or body
specified by the court;
(iii) any other conditions specified by the court.
(2) A court may
vary or revoke the conditions imposed by
subsection (1)(d)(i)
and
(ii)
if the defendant satisfies the court, by evidence given on oath,
that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
defendant does not represent an undue risk to the safety of the
public.
Note—
1 i.e. the
period of imprisonment or supervision that would have been imposed if the
defendant had been found guilty of the relevant offence and without taking
account of the defendant's mental impairment.
6—Amendment
of section 269OA—Court may direct defendant to surrender firearm
etc
Section 269OA(1)—delete "a supervision order that is subject to the
condition imposed by 269OA(1a)(a)" and substitute:
the condition imposed by section 269O(1)(d)(i)
7—Substitution
of section 269P
Section 269P—delete the section and substitute:
269P—Variation of supervision
requirements
(1) At any time during the limiting term, the court by which a defendant
is declared to be liable to supervision under this Part may, on the application
of the Crown, the defendant, the Parole Board, the Public Advocate or another
person with a proper interest in the matter, vary supervision requirements or
the limiting term fixed by section 269O (but not so as to require a limiting
term of less than 2 years).
(2) If the court refuses an application by or on behalf of a defendant
under this section (the initial application), a further
application cannot be made by or on behalf of the defendant for 6 months or such
greater or lesser period as the court may direct on refusing the initial
application.
8—Amendment
of section 269Q—Report on mental condition of
defendant
(1) Section 269Q—after subsection (1) insert:
(1a) If a person preparing a report under subsection (1) is of the
opinion that the voluntary consumption of a drug by the defendant caused,
contributed to or exacerbated the defendant's mental impairment, that opinion
must be specified in the report and the suggested treatment plan must address
the issue of drug use by the defendant.
(2) Section 269Q(2)—delete "If a supervision order is made against
the defendant" and substitute:
If a defendant is subject to supervision requirements
(3) Section 269Q(2)—after "the court" insert:
and to the Parole Board
9—Substitution
of section 269S
Section 269S—delete the section and substitute:
269S—Principle on which court is to
act
In deciding whether to release a defendant under this Division, or the
conditions of a licence, the court must—
(a) apply the principle that the primary consideration is the protection
of the community; and
(b) impose such restrictions on the defendant's freedom and personal
autonomy as are necessary or desirable for the protection of the
community.
10—Amendment
of section 269T—Matters to which court is to have
regard
(1) Section 269T(1)—after paragraph (b) insert:
(ba) if the court is of the opinion that the voluntary consumption of a
drug by the defendant caused, contributed to or exacerbated the defendant's
mental impairment—the need to deter others from engaging in such drug use;
and
(bb) the personal circumstances of any victim or, if any victim was killed
as a result of the defendant's conduct, the next of kin of the victim (so far as
they are known to the court); and
(2) Section 269T(2a)(a)—delete "order" and substitute:
requirements
11—Substitution
of section 269U
Section 269U—delete the section and substitute:
269U—Revision of supervision
requirements
(1) If a person who has been released on licence under this Division
contravenes or is likely to contravene a condition of the licence, a court may,
on application by the Parole Board (which may be made, in a case of urgency, by
telephone), review the supervision requirements.
(2) After allowing the applicant and the person subject to the
requirements a reasonable opportunity to be heard on the application for review,
a court may—
(a) confirm the present terms of the supervision requirements;
or
(b) amend the requirements so that they cease to provide for release on
licence and provide instead for detention; or
(c) amend the requirements by varying the conditions of the
licence,
and make any further order or direction that may be appropriate in the
circumstances.
(3) When an application for review of supervision requirements is made, a
court may issue a warrant to have the person subject to the requirements
arrested and brought before the court and may, if appropriate, make orders for
detention of that person until the application is determined.
12—Amendment
of section 269V—Custody, supervision and care
Section 269V(3)—delete subsection (3) and substitute:
(3) Supervisory responsibilities arising from conditions on which a person
is released on licence are to be exercised by the Parole Board.
13—Amendment
of section 269VA—Effect of supervening imprisonment
(1) Section 269VA(1)—delete "order is" and substitute:
requirements are
(2) Section 269VA(2)—delete "term of a supervision order" and
substitute:
period under which a defendant is subject to supervision
requirements
14—Amendment
of section 269Y—Appeals
Section 269Y(2)—delete "a supervision order" and
substitute:
supervision requirements
15—Amendment
of section 269Z—Counselling of next of kin and
victims
Section 269Z—after "detention" insert:
or in the degree of supervision to which the defendant is subject being
significantly reduced
Part 1—Related amendment to the Child Sex
Offenders Registration Act 2006
1—Amendment
of section 4—Interpretation
Section 4(1), definition of supervised sentence paragraph
(e)—delete paragraph (e) and substitute:
(e) supervision requirements within the meaning of Part 8A of the
Criminal
Law Consolidation Act 1935
under which the person the subject of the requirements is released on
licence;
Part 2—Related amendment to the Victims of
Crime Act 2001
2—Amendment
of section 8—Right to information
Section 8(1)(i)—delete paragraph (i) and substitute:
(i) if the offender is subject to supervision requirements under
Part 8A of the
Criminal
Law Consolidation Act 1935
and the offender, or any other person, later makes an application for
variation of the requirements or an application for review of the requirements
is made—the outcome of the proceedings and, in particular, if the offender
is released on licence, any conditions imposed on the licence.