South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Criminal Law (Extended Supervision Orders)
Bill 2015
A BILL FOR
An Act to provide for the making of extended supervision orders in relation
to certain serious offenders; to make a related amendment to the
Correctional
Services Act 1982
; and for other purposes.
Contents
5Meaning of high risk
offender
Part 2—Extended supervision
orders
10Supervision
orders—terms and conditions
11Conditions of extended
supervision orders imposed by Parole Board
12Duration of extended supervision
order
13Variation and revocation of supervision
order
14Consequential and ancillary
orders
16Inquiries by medical
practitioners
17Offence to contravene
or fail to comply with supervision order
18Apprehension etc of person subject to extended
supervision order on Board warrant
Schedule 1—Related amendment to
Correctional Services Act 1982
1Amendment of section 64—Reports by
Board
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Criminal Law (Extended Supervision Orders)
Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
The object of this Act is to provide the means to protect the community
from being exposed to an appreciable risk of harm posed by serious sexual
offenders and serious violent offenders.
In this Act, unless the contrary intention appears—
CE means the chief executive of the administrative unit of
the Public Service that is, under a Minister, responsible for the administration
of the
Correctional
Services Act 1982
;
community corrections officer means an officer or employee of
the administrative unit of the Public Service that is, under a Minister,
responsible for the administration of the
Correctional
Services Act 1982
whose duties include the supervision of offenders in the
community;
detainee means a person who is detained as a result of being
declared liable to supervision under Part 8A of the
Criminal
Law Consolidation Act 1935
;
extended supervision order means an order under this Act made
in respect of a high risk offender by the Supreme Court;
government custody means custody as a prisoner or
detainee;
high risk offender—see
section 5
;
interim supervision order—see
section 9
;
Parole Board means the Parole Board of South
Australia;
prisoner has the same meaning as in the
Correctional
Services Act 1982
;
relevant expiry date means—
(a) in relation to a high risk offender who is serving a sentence of
imprisonment (whether the offender is in prison or on release on home detention
or parole)—
(i) if the offender is not serving a sentence of life
imprisonment—the date on which the term, or terms, of imprisonment to
which the offender was sentenced expire; and
(ii) if the offender is serving a sentence of life imprisonment—the
date on which the sentence of imprisonment will be taken to have been wholly
satisfied; and
(b) in relation to a high risk offender who is subject to an existing
extended supervision order—the date on which the extended supervision
order expires;
respondent—see
section 7(1)
;
serious offence of violence has the same meaning as in
section 83D(1) of the
Criminal
Law Consolidation Act 1935
;
serious sexual offence has the same meaning as in
section 33(1) of the
Criminal
Law (Sentencing) Act 1988
;
serious sexual offender means a person convicted (whether
before or after the commencement of this Act) of a serious sexual
offence;
serious violent offender means a person convicted (whether
before or after the commencement of this Act) of a serious offence of
violence;
supervision order means an extended supervision order or an
interim supervision order;
youth has the same meaning as in the
Young
Offenders Act 1993
.
5—Meaning
of high risk offender
For the purposes of this Act, a high risk offender
is—
(a) a serious sexual
offender who was sentenced to a period of imprisonment in respect of the serious
sexual offence; or
(b) a person referred to in
paragraph (a)
who is serving a sentence of imprisonment any part of which is in respect
of any of the following offences:
(i) an offence under section 58 or 63A of the
Criminal
Law Consolidation Act 1935
;
(ii) an offence under
section 44, 45, 65 or 66N(2) of the
Child
Sex Offenders Registration Act 2006
;
(iii) an offence under section 99I of the
Summary
Procedure Act 1921
;
(iv) an offence prescribed by the regulations for the purposes of this
paragraph; or
(c) a serious violent offender who was sentenced to a period of
imprisonment in respect of the serious offence of violence; or
(d) a person who is serving a sentence of imprisonment any part of which
is in respect of an offence of contravening or failure to comply with a
supervision order (see
section 17
); or
(e) a person who is subject to an extended supervision order.
This Act does not apply in relation to a youth.
Part 2—Extended
supervision orders
(1) The
Attorney-General may make an application to the Supreme Court for an extended
supervision order to be made in respect of a person who is a high risk offender
(the respondent).
(2) An application
for an extended supervision order may only be made within 12 months of the
relevant expiry date for the respondent.
(3) The Supreme
Court must, before determining whether to make an extended supervision order,
direct that 1 or more legally qualified medical practitioners (to
be nominated by a prescribed authority for the purpose) examine the respondent
and report to the Court on the results of the examination,
including—
(a) if the respondent is a serious sexual offender—an assessment of
the likelihood of the respondent committing a further serious sexual offence;
or
(b) if the respondent is a serious violent offender—an assessment of
the likelihood of the respondent committing a further serious offence of
violence.
(4) The Supreme
Court may, on application under this section, order that the respondent is to be
subject to an extended supervision order if satisfied that—
(a) the respondent is a high risk offender; and
(b) the respondent poses an appreciable risk to the safety of the
community if not supervised under the order.
(5) The paramount consideration of the Supreme Court in determining
whether to make an extended supervision order must be the safety of the
community.
(6) The Supreme
Court must also take the following matters into consideration in determining
whether to make an extended supervision order in respect of the
respondent:
(a) the likelihood of the respondent committing a further serious sexual
offence or serious offence of violence (as the case may be) if not supervised
under the order;
(b) the reports of any medical practitioner (as directed and nominated
under
subsection (3)
) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of
the
Correctional
Services Act 1982
;
(d) any report
required by the Court under
section 15
(including the results of any statistical or other assessment furnished to
the Court as to the likelihood of persons with histories and characteristics
similar to those of the respondent committing a further relevant
offence);
(e) any relevant evidence or representations that the respondent may
desire to put to the Court;
(f) any treatment or rehabilitation program in which the respondent has
had an opportunity to participate, including his or her willingness to so
participate and the extent of such participation;
(g) in the case of a respondent released on parole—the extent to
which he or she has complied with the conditions of his or her release on
parole;
(h) in the case of a respondent subject to an existing extended
supervision order—the extent to which he or she has complied with the
terms of the order;
(i) in the case of a respondent who is a registrable offender (within the
meaning of the
Child
Sex Offenders Registration Act 2006
)—the extent to which he or she has complied with any obligations
under that Act;
(j) the
circumstances and seriousness of any offence in respect of which the respondent
has been found guilty according to his or her criminal history, and any pattern
of offending behaviour disclosed by that history;
(k) any remarks made by the sentencing court in passing
sentence;
(l) any other matter that the Court thinks relevant.
Both the Attorney-General and the person to whom an application under this
Act for an extended supervision order relates are parties to the
application.
(1) The Supreme
Court may make an interim supervision order if an application for an extended
supervision order in relation to a high risk offender has been made and the
Court is satisfied—
(a) that the relevant expiry date for the respondent is likely to occur
before the application is determined; and
(b) that the matters alleged in the material supporting the application
would, if proved, justify the making of an extended supervision order.
(2) An interim supervision order takes effect on the making of the order
until the application for the extended supervision order is
determined.
10—Supervision
orders—terms and conditions
(1) The following
conditions apply in relation to an extended supervision order:
(a) a condition
that the person subject to the order not commit any offence;
(b) a condition
that the person subject to the order is prohibited from possessing a firearm or
ammunition (both within the meaning of the
Firearms
Act 1977
) or any part of a firearm;
(c) a condition prohibiting the person subject to the order from
possessing an offensive weapon unless the Supreme Court permits the person to
possess such a weapon and the person complies with the terms and conditions of
the permission;
(d) a condition that the person subject to the order—
(i) be under the supervision of a community corrections officer;
and
(ii) obey the reasonable directions of the community corrections officer;
and
(iii) submit to
such tests (including testing without notice) for gunshot residue as the
community corrections officer may reasonably require;
(e) any other
condition that the Court thinks fit and specifies in the order;
(f) any condition
imposed by the Parole Board under
section 11
.
(2) The conditions referred to in
subsection (1)(a)
to
(e)
(inclusive) apply in relation to an interim supervision order.
(3) The Supreme Court may only vary or revoke the condition imposed by
subsection (1)(b)
if the Court is satisfied that—
(a) there are cogent reasons to do so; and
(b) the possession of the firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public.
(4) The Supreme Court must, on making or varying a supervision
order—
(a) take all reasonable steps to explain to the person the subject of the
order the terms and conditions of the order and, in particular—
(i) the person's obligations under the order; and
(ii) the consequences that may follow from a failure to comply with the
order; and
(b) forward a copy of the order as made or varied to the Parole Board and
to the Commissioner of Police.
11—Conditions
of extended supervision orders imposed by Parole Board
(1) Without
limiting
section 10(1)(f)
, the Parole Board may (for example) impose a condition on an extended
supervision order—
(a) requiring the person subject to the order to—
(i) reside at a specified address; or
(ii) undertake such activities and programs as determined from time to
time by the Board; or
(iii) be monitored by use of an electronic device; or
(b) providing that a community corrections officer or police officer may,
at any time—
(i) visit the person subject to the order at the person’s
residential address; and
(ii) access any computer or related equipment that is at the
person’s residential address or in the possession of the person,
and, for that purpose, enter the premises at that address; or
(c) prohibiting or restricting the person subject to the order
from—
(i) associating or communicating with a specified person or persons of a
specified class; or
(ii) residing or being present at, or being in the vicinity of, a
specified place or premises or a place or premises of a specified class;
or
(iii) possessing a specified article or weapon, or articles or weapons of
a specified class; or
(iv) engaging in specified conduct, or conduct of a specified kind;
or
(v) undertaking specified employment or employment of a specified kind;
or
(vi) applying for a change of name; or
(vii) engaging in any other conduct of a kind specified by the
Board.
(2) The Parole
Board may, on application by the Attorney-General or the person subject to an
extended supervision order, or of its own motion, vary or revoke a condition of
the order imposed by the Board or impose further conditions on the
order.
(3) The Parole
Board must, on imposing a condition or further condition on, or on varying or
revoking a condition of, an extended supervision order—
(a) provide the
person the subject of the order with a copy of the order as varied by the Board;
and
(b) take all reasonable steps to explain to the person the subject of the
order the terms and conditions of the order and, in particular—
(i) the person's obligations under the order; and
(ii) the consequences that may follow from a failure to comply with the
order; and
(c) forward a copy of the order as varied by the Board under this section
to the Supreme Court and the Commissioner of Police.
(4) The Parole Board cannot exercise its powers under
subsection (1)
or
(2)
of its own motion in relation to a person subject to an extended
supervision order unless the person and the Attorney-General have been afforded
a reasonable opportunity to make submissions to the Board on the matter, and the
Board has considered any submissions so made.
(5) For the purposes of proceedings under
subsection (1)
or
(2)
, a member of the Parole Board may summon the person the subject of the
proceedings to appear before the Board.
(6) If a person who has been summoned to appear before the Parole Board
fails to attend in compliance with the summons, the Board may—
(a) determine the proceedings in his or her absence; or
(b) direct a member of the Board to—
(i) issue a warrant; or
(ii) apply to a magistrate for a warrant,
for the apprehension and detention of the person for the purpose of
bringing him or her before the Board.
(7) A magistrate must, on application under this section, 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.
(8) The Parole Board may, if it thinks good reason exists for doing so,
cancel a warrant issued under this section at any time before its
execution.
12—Duration
of extended supervision order
(1) An extended supervision order—
(a) takes effect—
(i) on the making of the order; or
(ii) on the relevant expiry date for the person subject to the
order,
whichever is the later; and
(b) remains in force for a period of 5 years or such lesser period as
is determined by the Supreme Court and specified in the order.
(2) The obligations of a person subject to an extended supervision order
are suspended during any period the person is in government custody.
(3) Nothing in this section prevents the Court, on application by the
Attorney-General, from making a second or subsequent extended supervision order
against a person.
13—Variation
and revocation of supervision order
(1) The Supreme
Court may, on application made by the Attorney-General or a person subject to a
supervision order, vary a condition of the order (including a condition imposed
by the Parole Board) or revoke the order.
(2) A person
subject to a supervision order may only apply under
subsection (1)
with the permission of the Court.
(3) The Court may only grant permission under
subsection (2)
if satisfied that—
(a) there has been a material change in circumstances relating to the
person or supervision order; and
(b) it is in the interests of justice to grant permission.
14—Consequential
and ancillary orders
(1) The Supreme
Court may, on making or varying a supervision order, make any consequential or
ancillary order it thinks fit, including, in a case where the supervision order
prohibits the possession of an article or weapon or an article or weapon of a
specified class, an order—
(a) providing for the surrender or confiscation of the article or weapon
or such an article or weapon; and
(b) if the circumstances of the case so require, authorising a police
officer—
(i) to enter and search and, if necessary, use reasonable force to break
into or open—
(A) premises or a vehicle in which the article or weapon, or such an
article or weapon is suspected to be; or
(B) part of, or anything in or on, premises or a vehicle in which the
article or weapon, or such an article or weapon is suspected to be;
and
(ii) to take possession of the article or weapon, or such an article or
weapon.
(2) An article or weapon surrendered or confiscated under
subsection (1)
is forfeited to the Crown and may be sold or disposed of as the
Attorney-General thinks fit unless the Court orders that the article or weapon
is to be returned to the person subject to the supervision order when the order
lapses or is revoked.
(3) The Court may not award costs against a person to whom this Act
applies in respect of proceedings under this Act.
(1) The Supreme
Court may, for the purpose of obtaining assistance in determining an application
under this Act, require the Parole Board, the CE or any other body or person to
furnish the Court with a report on any matter.
(2) A copy of any report furnished to the Court under
subsection (1)
must be given to each party to the proceedings or to counsel for those
parties.
16—Inquiries
by medical practitioners
Where, for the purposes of an application for an extended supervision
order, the Supreme Court directs 1 or more legally qualified
medical practitioners (to be nominated by a prescribed authority) to examine the
respondent to the application and report to the Court on the results of the
examination, each medical practitioner so nominated—
(a) must carry out an independent personal examination of the respondent;
and
(b) may have access to any evidence before the court by which the
respondent was convicted; and
(c) may obtain the assistance of a psychologist, social worker, community
corrections officer or any other person.
17—Offence
to contravene or fail to comply with supervision order
(1) A person subject to a supervision order who contravenes or fails to
comply with a condition of the order is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(2) For the purposes of determining whether a particular communication
amounts to a breach of a condition of a supervision order that prohibits or
restricts certain communication, the person subject to the order will be taken
to have communicated with a specified person, or a person within a specified
class, if the other person, in the circumstances of the communication, appears
to be the specified person or within the specified class of person.
(3) A person does not commit an offence against this section in respect of
an act or omission unless the person knew that the act or omission constituted a
contravention of, or failure to comply with, the supervision order, or a
condition of a supervision order, or was reckless as to that fact.
18—Apprehension
etc of person subject to extended supervision order on Board
warrant
(1) If a member of
the Parole Board suspects on reasonable grounds that a person who is subject to
an extended supervision order may have breached a condition of the order, the
member may summon the person the subject of the order to appear before the
Board.
(2) If a person who
has been summoned to appear before the Parole Board fails to attend in
compliance with the summons, the Board may—
(a) determine the proceedings in the person's absence; or
(b) direct a member of the Board to—
(i) issue a warrant; or
(ii) apply to a magistrate for a warrant,
for the apprehension and detention of the person for the purpose of
bringing him or her before the Board.
(3) A magistrate must, on application under this section, 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.
(4) The Parole Board may, if it thinks good reason exists for doing so,
cancel a warrant issued under this section at any time before its
execution.
(5) The following provisions apply in relation to proceedings before the
Parole Board under this section in relation to a person who is subject to an
extended supervision order:
(a) the person and the Attorney-General must be afforded a reasonable
opportunity to make submissions to the Board on the matter;
(b) the Board may vary or revoke a condition of the order imposed by the
Board under this Act or impose further conditions on the order;
(c) the Board must, on imposing a condition or further condition on, or on
varying or revoking a condition of, the order—
(i) provide the
person the subject of the order with a copy of the order as varied by the Board;
and
(ii) take all reasonable steps to explain to the person the subject of the
order the terms and conditions of the order and, in particular—
(A) the person's obligations under the order; and
(B) the consequences that may follow from a failure to comply with the
order; and
(iii) forward a copy of the order as varied by the Board under this
section to the Supreme Court and the Commissioner of Police.
(1) An appeal lies to the Full Court against a decision of the Supreme
Court on an application by the Attorney-General for an extended supervision
order under
section 7
.
(2) An appeal under this section may be instituted by the Attorney-General
or by the person to whom the decision relates.
(3) Subject to a contrary order of the Full Court, an appeal cannot be
commenced after 10 days from the date of the decision against which the
appeal lies.
(4) On an appeal, the Full Court may—
(a) confirm, reverse or annul the decision subject to appeal;
(b) make any order that it considers should have been made in the first
instance;
(c) make any consequential or ancillary orders.
(5) The institution
of an appeal under this section does not affect the operation of the decision to
which the appeal relates.
(1) The Governor
may make such regulations as are contemplated by, or as are necessary or
expedient for the purposes of, this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may—
(a) be of general application or vary in their application according to
prescribed factors; and
(b) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or a
prescribed person.
Schedule 1—Related
amendment to Correctional Services
Act 1982
1—Amendment
of section 64—Reports by Board
Section 64—after subsection (4) insert:
(5) The Board must,
on the request of the Attorney-General, provide a report to the Attorney-General
on the progress and circumstances of a prisoner who is a high risk offender
(within the meaning of the
Criminal
Law (Extended Supervision Orders) Act 2015
), including such recommendations as the Board thinks fit as to whether or
not an application for an extended supervision order under the
Criminal
Law (Extended Supervision Orders) Act 2015
should be made in respect of the prisoner and, if such order is made, the
conditions of the order to which the prisoner should be subject.