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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Sentencing (Suspended and Community Based Custodial
Sentences) Amendment Bill 2019
A BILL FOR
An Act to amend the
Sentencing
Act 2017
and to make related amendments to the
Correctional
Services Act 1982
.
Contents
Part 2—Amendment of Sentencing
Act 2017
4Repeal of Part 2 Division 2 Subdivision
3
5Amendment of section 52—Interpretation and
application
6Amendment of section 70—Home detention not
available for certain offences
7Amendment of section 71—Home detention
orders
9Amendment of section 80—Intensive
correction not available for certain offences
10Amendment of section 81—Intensive
correction orders
11Amendment of section 82—Conditions of
intensive correction order
13Amendment of section 95—Interpretation
and application of Part
14Amendment of section 96—Suspension of
imprisonment on defendant entering into bond
15Amendment of section 106—Provisions
relating to supervision in the community
17Amendment of section 114—Orders that
court may make on breach of bond
Schedule 1—Related amendments and
transitional provisions
Part 1—Related amendments to
Correctional Services Act 1982
1Amendment of section 37A—Release on home
detention
Part 2—Transitional
provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Sentencing (Suspended and Community Based
Custodial Sentences) Amendment Act 2019.
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 Sentencing
Act 2017
4—Repeal
of Part 2 Division 2 Subdivision 3
Part 2 Division 2 Subdivision 3—delete
Subdivision 3
5—Amendment
of section 52—Interpretation and application
Section 52(1), definition of terrorist act—delete
"the
Terrorism
(Commonwealth Powers) Act 2002
" and substitute:
Part 5.3 of the Criminal Code of the Commonwealth
6—Amendment
of section 70—Home detention not available for certain
offences
Section 70(2), definition of terrorist act—delete
"the
Terrorism
(Commonwealth Powers) Act 2002
" and substitute:
Part 5.3 of the Criminal Code of the Commonwealth
7—Amendment
of section 71—Home detention orders
(1) Section 71(2)(b)(ii)—delete "the court is satisfied that
special reasons exist for the making of a home detention order; or" and
substitute:
—
(A) the offence is a prescribed serious sexual offence that occurred in
prescribed circumstances; or
(B) if subsubparagraph (A) does not apply, the court is satisfied that
special reasons exist for the making of a home detention order; or
(2) Section 71(2)(b)(iv)—delete "or home detention" and
substitute:
, home detention or an intensive correction order
(3) Section 71(2)(d)—delete "concurrently with a" and
substitute:
cumulatively on another term of imprisonment (other than a term of
imprisonment to be served subject to a home detention order), or concurrently
with another
(4) Section 71(4)—delete subsection (4) and
substitute:
(4) The following provisions apply for the purposes of
subsection (2)(b)(ii)(B):
(a) the court cannot be satisfied that special reasons exist for the
purposes of subsection (2)(b)(ii)(B) unless the court is satisfied
that—
(i) the defendant's advanced age or permanent infirmity means that the
defendant no longer presents an appreciable risk to the safety of the community
(whether as individuals or in general); and
(ii) the interest of the community as a whole would be better served by
the defendant serving the sentence on home detention rather than in
custody;
(b) the court must not have regard to any other matter in determining
whether it is satisfied that special reasons exist for the purposes of
subsection (2)(b)(ii)(B).
(5) Section 71(5)—after the definition of designated
offence insert:
foster parent, of a child, includes—
(a) an approved carer of the child; and
(b) a person in whose care the child is placed under section 77 of
the
Children
and Young People (Safety) Act 2017
;
(6) Section 71(5)—after the definition of prescribed
designated offence insert:
prescribed serious sexual offence means—
(a) any of the
following offences under the
Criminal
Law Consolidation Act 1935
where the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years:
(i) an offence under section 49 (unlawful sexual
intercourse);
(ii) an offence under section 56 (indecent assault);
(iii) an offence under section 58 (gross indecency);
(iv) an offence under section 63 (production or dissemination of
child exploitation material);
(v) an offence under section 63B (procuring child to commit an
indecent act etc); or
(b) an offence against a corresponding previous enactment substantially
similar to an offence referred to in paragraph (a); or
(c) an attempt to commit or an assault with intent to commit any of the
offences referred to in either of the preceding paragraphs;
(7) Section 71—after subsection (5) insert:
(6) For the
purposes of this section, an offence occurred in prescribed
circumstances if—
(a) either—
(i) the defendant was, at the time of the offence, 18 years of age
and the victim was not less than 15 years of age; or
(ii) the defendant was, at the time of the offence, 19 years of age
and the victim was not less than 16 years of age; and
(b) the defendant was not, at the time of the offence, a person in a
position of authority in relation to the victim.
(7) For the purposes of
subsection (6)
, a person is in a position of authority in relation to a
victim (the child) if—
(a) the person is a teacher and the child is a pupil of the teacher or of
a school at which the teacher works; or
(b) the person is a parent, step-parent, guardian or foster parent of the
child or the de facto partner or domestic partner of a parent, step-parent,
guardian or foster parent of the child; or
(c) the person provides religious, sporting, musical or other instruction
to the child; or
(d) the person is a religious official or spiritual leader (however
described and including lay members and whether paid or unpaid) in a religious
or spiritual group attended by the child; or
(e) the person is a health professional or social worker providing
professional services to the child; or
(f) the person is responsible for the care of the child and the child has
a cognitive impairment; or
(g) the person is employed or providing services in a correctional
institution (within the meaning of the
Correctional
Services Act 1982
) or a training centre (within the meaning of the
Young
Offenders Act 1993
), or is a person engaged in the administration of those Acts, acting in
the course of the person's duties in relation to the child; or
(h) the person is employed or providing services in a licensed children's
residential facility (within the meaning of the
Children
and Young People (Safety) Act 2017
), or a residential care facility or other facility established under
section 36 of the
Family
and Community Services Act 1972
, or is a person engaged in the administration of those Acts, acting in the
course of the person's duties in relation to the child; or
(i) the person is an employer of the child or other person who has the
authority to determine significant aspects of the child's terms and conditions
of employment or to terminate the child's employment (whether the child is being
paid in respect of that employment or is working in a voluntary
capacity).
(8) A description of an offence appearing in brackets in this section is
for convenience of reference only.
8—Amendment
of section 73—Orders that court may make on breach of condition of home
detention order etc
(1) Section 73(4)—delete "under subsection (1)" and
substitute:
in the circumstances referred to in subsection (1)(b)
(2) Section 73(4)(b)—delete paragraph (b)
(3) Section 73—after subsection (4) insert:
(4a) If a court revokes
a home detention order for breach of a condition of the order and orders that
the balance of the sentence be served in custody—
(a) the balance of the sentence is the balance remaining as at the day on
which the breach was committed, but the court may reduce the sentence after
taking into account both of the following:
(i) any period spent by the person on home detention after the day on
which the breach was committed pending determination of the proceedings for the
breach;
(ii) any period spent by the person in custody pending determination of
the proceedings for the breach of condition; and
(b) the court may direct that the sentence be cumulative on any other
sentence, or sentences, of imprisonment then being served, or to be served, by
the person.
(4b) In relation to the breach of a condition of a home detention order, a
reference in
subsection (4a)
to the day on which the breach was committed will, in the case of
proceedings relating to more than 1 breach, be taken to be a reference to
the day on which the first breach was committed.
9—Amendment
of section 80—Intensive correction not available for certain
offences
(1) Section 80(1)—after paragraph (a) insert:
(ab) are not exercisable in relation to an offence involving a terrorist
act; or
(2) Section 80(2)—after the definition of Act
insert:
terrorist act has the same meaning as Part 5.3 of the
Criminal Code of the Commonwealth.
10—Amendment
of section 81—Intensive correction orders
(1) Section 81(3)(a)—delete "concurrently with a" and
substitute:
cumulatively on another term of imprisonment (other than a term of
imprisonment to be served subject to an intensive correction order), or
concurrently with another
(2) Section 81(3)—after paragraph (a) insert:
(ab) an intensive
correction order must not be made if the defendant is being
sentenced—
(i) as an adult to
a period of imprisonment with a non-parole period of 2 years or more for a
prescribed designated offence; or
(ii) as an adult
for a serious sexual offence unless the court is satisfied that special reasons
exist for the making of an intensive correction order; or
(iii) as an adult
for a serious and organised crime offence or specified offence against police;
or
(iv) as an adult
for a designated offence and, during the 5 year period immediately
preceding the date on which the relevant offence was committed, a court has
sentenced the defendant to imprisonment (other than where the sentence is
suspended), home detention or an intensive correction order for a designated
offence;
(3) Section 81—after subsection (4) insert:
(5) In this section—
designated offence means any of the following offences under
the
Criminal
Law Consolidation Act 1935
:
(a) an offence
under section 12 (conspiring or soliciting to commit murder);
(b) an offence under section 12A (causing death by an intentional act
of violence);
(c) an offence under section 13 (manslaughter);
(d) an offence under section 13A (criminal liability in relation to
suicide);
(e) an offence under section 19 (unlawful threats);
(f) an offence under section 19AA (unlawful stalking);
(g) an offence under section 19AC (dangerous driving to escape police
pursuit);
(h) an offence under section 19A (causing death or harm by use of
vehicle or vessel);
(i) an offence under section 23 (causing serious harm);
(j) an offence under section 24 (causing harm);
(k) an offence under section 29A (shooting at police
officers);
(l) an offence under section 39 (kidnapping);
(m) an offence
under section 137 (robbery);
(n) an offence under section 170 (serious criminal
trespass—places of residence);
(o) an offence under section 270B (assaults with intent) if the
offence against the person to which that section applies is a relevant offence
referred to in a preceding paragraph;
prescribed designated offence means either of the following
offences under the
Criminal
Law Consolidation Act 1935
:
(a) an offence under section 13 (manslaughter);
(b) an offence under section 23 (causing serious harm);
serious and organised crime offence means—
(a) any of the following offences under the
Criminal
Law Consolidation Act 1935
:
(i) an offence under section 83E (participation in criminal
organisation);
(ii) an aggravated offence under—
(A) section 172 (blackmail); or
(B) section 251 (abuse of public office),
where the aggravating circumstances of the offence are the circumstances
referred to in section 5AA(1)(ga)(i) or (ii) of that Act;
(iii) an offence under section 244 (offences relating to
witnesses);
(iv) an offence under section 245 (offences relating to
jurors);
(v) an attempt to commit any of the offences referred to in any of the
preceding subparagraphs; or
(b) any of the following offences under the
Controlled
Substances Act 1984
:
(i) an offence under section 32(1) (trafficking (large commercial
quantity controlled drug));
(ii) an aggravated offence under section 32(2) (trafficking
(commercial quantity controlled drug));
(iii) an aggravated offence under section 32(2a) (trafficking
(controlled drug in prescribed area));
(iv) an aggravated offence under section 32(3) (trafficking
(controlled drug));
(v) an offence under section 33(1) (manufacturing controlled drug for
sale (large commercial quantity));
(vi) an aggravated offence under section 33(2) (manufacturing
controlled drug for sale (commercial quantity));
(vii) an aggravated offence under section 33(3) (manufacturing
controlled drug for sale);
(viii) an aggravated offence under section 33A(1) (sale/manufacture
etc controlled precursor (large commercial quantity));
(ix) an aggravated offence under section 33A(2) (sale/manufacture etc
controlled precursor (commercial quantity));
(x) an aggravated offence under section 33A(3) (sale/manufacture etc
controlled precursor);
(xi) an aggravated offence under section 33A(4) (manufacture etc
controlled precursor);
(xii) an aggravated offence under section 33A(5) (manufacture etc
controlled precursor);
(xiii) an offence under section 33F (sale, supply or administration
of controlled drug to child);
(xiv) an offence under section 33G (sale, supply or administration of
controlled drug in school zone);
(xv) an offence under section 33H (procuring child to commit offence
(relating to controlled drug, precursor or plant));
(xvi) an attempt to commit any of the offences referred to in any of the
preceding subparagraphs;
serious sexual offence means—
(a) any of the
following offences under the
Criminal
Law Consolidation Act 1935
where the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years:
(i) an offence
under section 48 (rape);
(ii) an offence under section 48A (compelled sexual
manipulation);
(iii) an offence under section 49 (unlawful sexual
intercourse);
(iv) an offence under section 50 (persistent sexual abuse of a
child);
(v) an offence under section 51 (sexual exploitation of person with a
cognitive impairment);
(vi) an offence under section 56 (indecent assault);
(vii) an offence under section 58 (gross indecency);
(viii) an offence under section 59 (abduction);
(ix) an offence under section 60 (procuring sexual
intercourse);
(x) an offence under section 63 (production or dissemination of child
exploitation material);
(xi) an offence under section 63B (procuring child to commit an
indecent act etc);
(xii) an offence under section 66 (sexual servitude and related
offences);
(xiii) an offence under section 67 (deceptive recruiting for
commercial sexual services);
(xiv) an offence under section 68 (use of children in commercial
sexual services);
(xv) an offence under section 72 (incest);
(xvi) an offence against a corresponding previous enactment substantially
similar to an offence referred to in any of the preceding
subparagraphs;
(xvii) an attempt to commit or an assault with intent to commit any of the
offences referred to in any of the preceding subparagraphs;
(b) an offence against the law of another State or a Territory
corresponding to an offence referred to in
paragraph (a)
;
specified offence against police means—
(a) an aggravated offence under—
(i) section 23(1) of the
Criminal
Law Consolidation Act 1935
(intentionally causing serious harm); or
(ii) section 23(3) of the
Criminal
Law Consolidation Act 1935
(recklessly causing serious harm),
where the aggravating circumstances of the offence are the circumstances
referred to in section 5AA(1)(c) of that Act and the victim is a police
officer; or
(b) an offence of attempted murder or attempted manslaughter under the
Criminal
Law Consolidation Act 1935
where the victim is a police officer and the offender committed the
offence—
(i) knowing the victim to be acting in the course of the victim's official
duty; or
(ii) in retribution for something the offender knows or believes to have
been done by the victim in the course of the victim's official duty.
(6) A description of an offence appearing in brackets in this section is
for convenience of reference only.
11—Amendment
of section 82—Conditions of intensive correction
order
(1) Section 82(1)—after paragraph (g) insert:
(ga) a condition requiring the person to undertake an intervention program
as directed by the community corrections officer to whom the person is
assigned;
(2) Section 82(2)(d)—delete paragraph (d)
12—Amendment
of section 83—Orders that court may make on breach of condition of
intensive correction order etc
(1) Section 83(3)—delete subsection (3) and
substitute:
(3) If a court
revokes an intensive correction order for a breach of a condition of the order
and orders that the balance of the sentence be served in custody under
subsection (1)—
(a) the balance of the sentence is the balance remaining as at the day on
which the breach was committed, but the court may reduce the sentence after
taking into account both of the following:
(i) any period spent by the person subject to the intensive correction
order after the day on which the breach was committed pending determination of
the proceedings for the breach;
(ii) any period spent by the person in custody pending determination of
the proceedings for the breach of condition; and
(b) the court may direct that the sentence be cumulative on any other
sentence, or sentences, of imprisonment then being served, or to be served, by
the person.
(3a) A reference in
subsection (3)
to the day on which the breach (of a condition) was committed will, in the
case of proceedings relating to more than 1 breach, be taken to be a reference
to the day on which the first breach was committed.
(2) Section 83(4)(a)—delete paragraph (a) and substitute:
(a) attendance at remunerated employment at such times and places as are
approved from time to time by the community corrections officer to whom the
person is assigned;
(3) Section 83(4)(b)—delete "necessary" and substitute:
urgent
(4) Section 83(4)—after paragraph (b) insert:
(ba) attendance at—
(i) a place for the purpose of undergoing assessment or treatment (or
both) relating to the defendant's mental or physical condition; or
(ii) an intervention program; or
(iii) any other course of education, training or instruction, or other
activity,
as approved or directed by the community corrections officer to whom the
person is assigned;
13—Amendment
of section 95—Interpretation and application of Part
(1) Section 95(2)(b)—after subparagraph (i) insert:
(ia) an offence involving a terrorist act; or
(2) Section 95(3)—after the definition of Act
insert:
terrorist act has the same meaning as in Part 5.3 of the
Criminal Code of the Commonwealth.
(3) Section 95—after subsection (3) insert:
(4) For the purposes of this Part, a reference to an offence of
murder includes—
(a) an offence of conspiracy to murder; and
(b) an offence of aiding, abetting, counselling or procuring the
commission of murder.
14—Amendment
of section 96—Suspension of imprisonment on defendant entering into
bond
(1) Section 96(3)—after paragraph (b) insert:
(ba) as an adult for a serious sexual offence; or
(2) Section 96(7)—delete subsection (7)
(3) Section 96(9), definition of designated offence,
(i)—delete paragraph (i)
(4) Section 96(9)—after the definition of designated
offence insert:
foster parent, of a child, includes—
(a) an approved carer of the child; and
(b) a person in whose care the child is placed under section 77 of
the
Children
and Young People (Safety) Act 2017
;
(5) Section 96(9)—after the definition of serious and
organised crime offence insert:
serious sexual offence means—
(i) any of the following offences under the
Criminal
Law Consolidation Act 1935
where the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years:
(A) an offence
under section 48 (rape);
(B) an offence under section 48A (compelled sexual
manipulation);
(C) an offence under section 50 (persistent sexual abuse of a
child);
(D) an offence under section 51 (sexual exploitation of person with a
cognitive impairment);
(E) an offence under section 59 (abduction);
(F) an offence under section 60 (procuring sexual
intercourse);
(G) an offence under section 66 (sexual servitude and related
offences);
(H) an offence under section 67 (deceptive recruiting for commercial
sexual services);
(I) an offence under section 68 (use of children in commercial sexual
services);
(J) an offence under section 72 (incest);
(K) an offence against a corresponding previous enactment substantially
similar to an offence referred to in any of the preceding
subsubparagraphs;
(L) an attempt to commit or an assault with intent to commit any of the
offences referred to in any of the preceding subsubparagraphs; or
(ii) any of the
following offences under the
Criminal
Law Consolidation Act 1935
where the maximum penalty prescribed for the offence is, or includes,
imprisonment for at least 5 years:
(A) an offence under section 49 (unlawful sexual intercourse), other
than an offence that occurred in prescribed circumstances;
(B) an offence under section 56 (indecent assault), other than an
offence that occurred in prescribed circumstances;
(C) an offence under section 58 (gross indecency), other than an
offence that occurred in prescribed circumstances;
(D) an offence under section 63 (production or dissemination of child
exploitation material), other than an offence that occurred in prescribed
circumstances;
(E) an offence under section 63B (procuring child to commit an
indecent act etc), other than an offence that occurred in prescribed
circumstances;
(iii) an offence against a corresponding previous enactment substantially
similar to an offence referred to in either of the preceding
subparagraphs;
(iv) an attempt to commit or an assault with intent to commit any of the
offences referred to in any of the preceding subparagraphs;
(b) an offence against the law of another State or a Territory
corresponding to an offence referred to in
paragraph (a)
;
(6) Section 96—after subsection (9) insert:
(10) For the purposes
of this section, an offence occurred in prescribed circumstances
if—
(a) either—
(i) the defendant was, at the time of the offence, 18 years of age
and the victim was not less than 15 years of age; or
(ii) the defendant was, at the time of the offence, 19 years of age
and the victim was not less than 16 years of age; and
(b) the defendant was not, at the time of the offence, a person in a
position of authority in relation to the victim.
(11) For the purposes of
subsection (10)
, a person is in a position of authority in relation to a
victim (the child) if—
(a) the person is a teacher and the child is a pupil of the teacher or of
a school at which the teacher works; or
(b) the person is a parent, step-parent, guardian or foster parent of the
child or the de facto partner or domestic partner of a parent, step-parent,
guardian or foster parent of the child; or
(c) the person provides religious, sporting, musical or other instruction
to the child; or
(d) the person is a religious official or spiritual leader (however
described and including lay members and whether paid or unpaid) in a religious
or spiritual group attended by the child; or
(e) the person is a health professional or social worker providing
professional services to the child; or
(f) the person is responsible for the care of the child and the child has
a cognitive impairment; or
(g) the person is employed or providing services in a correctional
institution (within the meaning of the
Correctional
Services Act 1982
) or a training centre (within the meaning of the
Young
Offenders Act 1993
), or is a person engaged in the administration of those Acts, acting in
the course of the person's duties in relation to the child; or
(h) the person is employed or providing services in a licensed children's
residential facility (within the meaning of the
Children
and Young People (Safety) Act 2017
), or a residential care facility or other facility established under
section 36 of the
Family
and Community Services Act 1972
, or is a person engaged in the administration of those Acts, acting in the
course of the person's duties in relation to the child; or
(i) the person is an employer of the child or other person who has the
authority to determine significant aspects of the child's terms and conditions
of employment or to terminate the child's employment (whether the child is being
paid in respect of that employment or is working in a voluntary
capacity).
(12) A description of an offence appearing in brackets in this section is
for convenience of reference only.
15—Amendment
of section 106—Provisions relating to supervision in the
community
Section 106(2)(b)—delete "except in the case of a bond with a home
detention condition,"
Section 109—delete the section
17—Amendment
of section 114—Orders that court may make on breach of
bond
Section 114(5)(d)—delete paragraph (d)
Schedule 1—Related
amendments and transitional provisions
Part 1—Related amendments to Correctional
Services Act 1982
1—Amendment
of section 37A—Release on home detention
(1) Section 37A(3)(a)(i)—delete subparagraph (i) and
substitute:
(i) attendance at remunerated employment at such times and places as are
approved from time to time by the authorised officer to whom the prisoner is
assigned;
(2) Section 37A(3)(a)—after subparagraph (ii) insert:
(iia) attendance at—
(A) a place for the purpose of undergoing assessment or treatment (or
both) relating to the person's mental or physical condition; or
(B) an intervention program (within the meaning of the
Sentencing
Act 2017
); or
(C) any other course of education, training or instruction, or other
activity,
as approved or directed by the authorised officer to whom the person is
assigned; or
2—Amendment
of section 75—Automatic cancellation of parole on imprisonment for offence
committed while on parole
(1) Section 75(1)(a)—delete "the sentence is not suspended; or" and
substitute:
—
(i) the sentence is not suspended; or
(ii) the court does not order that the person serve the sentence subject
to a home detention order or an intensive correction order under the
Sentencing
Act 2017
; or
(2) Section 75—after subsection (3) insert:
(4) If a person is sentenced to imprisonment for an offence committed
while on parole and—
(a) the court orders—
(i) that the sentence be suspended; or
(ii) that the person serve the sentence subject to a home detention order
or an intensive correction order under the
Sentencing
Act 2017
; and
(b) the person is, at the time of the order, still on parole,
the parole is, by virtue of this subsection, cancelled.
Part 2—Transitional
provisions
(1) An amendment effected by a provision of this Act applies to the
sentencing of a defendant after the commencement of the provision, regardless of
whether the offence for which the defendant is being sentenced was committed
before or after that commencement.
(2) An amendment effected by a provision of this Act relating to
proceedings for a breach of a condition of a home detention order or intensive
correction order applies to such proceedings—
(a) commenced but not determined before the commencement of the provision;
or
(b) commenced after the commencement of the provision,
regardless of whether the breach to which the proceedings relate was
committed before or after that commencement.