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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Sentencing) (Victims of Crime) Amendment
Bill 2008
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 6—Determination of
sentence
5 Amendment of section 7—Prosecutor to furnish particulars of
victim's injury etc
6 Amendment of section 7A—Victim impact
statements
7 Insertion of sections 7B and 7C
7B Community
impact statements
7C Statements to be provided in
accordance with rules
8 Insertion of section
44A
44A Assistance to victims etc
9 Insertion of
Part 9 Division 2A
Division 2A—Enforcement of restitution
orders
59 Non-compliance with order for restitution of
property
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Sentencing) (Victims of
Crime) Amendment Act 2008.
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 6—Determination of sentence
Section 6—after paragraph (b) insert:
and
(c) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
5—Amendment of
section 7—Prosecutor to furnish particulars of victim's injury
etc
Section 7—after subsection (2) insert:
(2a) If the offence is not an offence in relation to which a victim impact
statement may be furnished in accordance with section 7A, the court may
nevertheless allow particulars furnished under this section to include a victim
impact statement if the court determines that it would be appropriate in the
circumstances of the case (and the other provisions of this Division relating to
victim impact statements apply to such a statement as if it were furnished under
section 7A).
6—Amendment of
section 7A—Victim impact statements
(1) Section 7A(1)—after "indictable offence" insert:
or a prescribed summary offence
(2) Section 7A(1)—delete "trial" and substitute:
sentencing
(3) Section 7A(2)—delete subsection (2)
(4) Section 7A(3)—delete "The court, on convicting the defendant of
the offence" and substitute:
Before determining sentence for the offence, the court
(5) Section 7A(3)(a)—delete "so requested when furnishing the
statement, allow the person" and substitute:
, or an appropriate representative of the person, so requested when
furnishing the statement, allow the person, or an appropriate representative of
the person,
(6) Section 7A(3a)—delete subsection (3a) and substitute:
(3a) If the court considers there is good reason to do so, it may, in
order to assist a person who wishes to read out a victim impact statement to the
court—
(a) allow an audio or audio visual record of the person reading the
statement to be played to the court; or
(b) exercise any other powers that it has with regard to a vulnerable
witness.
(3b) Subject to subsection (3c), the court must, if the person so
requested when furnishing the statement, ensure that—
(a) the defendant; or
(b) if the defendant is a body corporate, a director or other officer or
an employee or agent of the body corporate who, in the opinion of the court, is
a suitable person to represent the defendant,
is present when the statement is read out to the court.
(3c) Subsection (3b) does not apply if the court is satisfied that
special reasons exist which make it inappropriate for the defendant or other
person to be present, or that the presence of the defendant or other person may
cause a disturbance or a threat to public order and safety (however, in such a
case, the court must ensure that the defendant or other person is present by
means of an audio visual link or audio link, if such facilities are reasonably
available to the court, or that arrangements are otherwise made for the
statement to be audiovisually recorded and played to the defendant).
(7) Section 7A—after subsection (4) insert:
(5) In this section—
appropriate representative, in relation to a person, means
any of the following:
(a) an officer of the court;
(b) the Commissioner for Victims' Rights or a person acting on behalf of
the Commissioner for Victims' Rights;
(c) an officer or employee of an organisation whose functions consist of,
or include, the provision of support or services to victims of crime;
(d) a relative of the person;
(e) another person who, in the opinion of the Commissioner for Victims'
Rights, would be suitable to act as an appropriate representative;
prescribed summary offence means a summary offence that has
caused the death of, or serious harm to, a person;
serious harm means—
(a) harm that endangers, or is likely to endanger, a person's life;
or
(b) harm that consists of, or is likely to result in, loss of, or serious
and protracted impairment of, a part of the body or a physical or mental
function; or
(c) harm that consists of, or is likely to result in, serious
disfigurement.
7—Insertion of
sections 7B and 7C
After section 7A insert:
7B—Community impact statements
(1) Any person may make a submission to the Commissioner for Victims'
Rights for the purpose of assisting the Commissioner to compile information
which may be included in a statement under this section.
(2) In any proceedings to determine sentence for an offence, the
prosecutor or the Commissioner for Victims' Rights may, if he or she thinks fit,
furnish the sentencing court with—
(a) a written statement about the effect of the offence, or of offences of
the same kind, on people living or working in the location in which the offence
was committed (a neighbourhood impact statement); or
(b) a written statement about the effect of the offence, or of offences of
the same kind, on the community generally or on any particular sections of the
community (a social impact statement).
(3) Before determining sentence for the offence, the court will cause the
statement to be read out to the court by the prosecutor, or such other person as
the court thinks fit, unless the court determines that it is inappropriate or
would be unduly time consuming for the statement to be so read out.
(4) The validity of a sentence is not affected by non-compliance or
insufficient compliance with this section.
7C—Statements to be provided in accordance with
rules
(1) A statement to be furnished to a court under section 7A or 7B must
comply with and be furnished in accordance with rules of court.
(2) A copy of the statement must be provided to the defendant or his or
her counsel in accordance with rules of court and the defendant is entitled to
make submissions to the court in relation to the statement.
Before section 45 insert:
44A—Assistance to victims etc
(1) If—
(a) a court intends to—
(i) impose a sentence of community service on a person in respect of an
offence; or
(ii) include a condition requiring the performance of community service in
a bond imposed on a person in respect of an offence; and
(b) the court is advised by a victim of the offence, or by the prosecution
on behalf of a victim of the offence, that the victim would like the defendant
to be required to perform community service in accordance with this
section,
the court may order that the community service, or a specified number of
hours of the community service, consist of projects or tasks—
(c) for the benefit of the victim; or
(d) of a kind requested by the victim.
(2) If a court refuses to make an order under this section, the court must
state the reasons for that refusal.
(3) If a court makes an order under this section in relation to a person,
the community corrections officer to whom the person is assigned must consult
with the victim before issuing any directions requiring the person to perform
projects or tasks.
(4) This section does not apply in relation to the performance of
community service by a youth.1
Note—
1 See Young Offenders Act 1993
section 51(1) which provides that work selected for the performance of
community service under that Act must be for the benefit of specified persons
and bodies, including the victim of the offence.
9—Insertion of
Part 9 Division 2A
After section 58 insert:
Division 2A—Enforcement of restitution
orders
59—Non-compliance with order for restitution of
property
(1) If—
(a) an order is made under section 52 requiring property to be
restored to a person; and
(b) the order is not complied with,
the person may request an authorised officer to take action under this
section for enforcement of the order.
(2) On receiving a request under this section in relation to an order
requiring the restitution of property, an authorised officer
may—
(a) enter any land (using such force as may be necessary) on which the
officer reasonably suspects the property is situated and seize and remove the
property; or
(b) cause the property to be valued (in such manner as the officer thinks
fit) and make an order requiring the defendant to pay to the person an amount
equal to the value of the property.
(3) In exercising powers under subsection (2)(a), an authorised
officer may be assisted by such other persons (including a member of the police
force) as the officer considers necessary in the circumstances.
(4) An authorised officer who makes an order under subsection (2)(b)
must cause a copy of the order to be served on the defendant personally or by
post.
(5) An order under subsection (2)(b)—
(a) may be made in the absence of, and without prior notice to, the
defendant; and
(b) may be varied or cancelled by an authorised officer in such
circumstances as the officer considers just; and
(c) is enforceable as a pecuniary sum.
(6) The prescribed fees for issuing, serving and executing an order under
subsection (2)(b) are payable in addition to the amount specified in the
order as the value of the relevant property and form part of the amount payable
under the order.
(7) In this section—
defendant, in relation to property, means the defendant in
the proceedings in which the order requiring restitution of the property was
made.