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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Victims of Crime)
Bill 2008
A BILL FOR
An Act to amend the Criminal Law (Sentencing) Act 1988; the
Criminal Law Consolidation Act 1935; the Defamation
Act 2005; the Freedom of Information Act 1991; and the
Victims of Crime Act 2001.
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 Amendment of section 19A—Restraining
orders may be issued on finding of guilt or sentence
9 Insertion of Part 9
Division 2A
Division 2A—Enforcement of restitution
orders
59 Non-compliance with order for restitution of
property
Part 3—Amendment of Criminal Law Consolidation
Act 1935
10 Amendment of section 269R—Reports and
statements to be provided to court
Part 4—Amendment of Defamation
Act 2005
11 Amendment of section 25—Defence of absolute
privilege
12 Insertion of Schedule a1
Schedule a1—Additional publications to which absolute privilege
applies
1 Matters arising out of proceedings of Parole
Board
Part 5—Amendment of Freedom of Information
Act 1991
13 Amendment of Schedule 2—Exempt
agencies
Part 6—Amendment of Victims of Crime
Act 2001
14 Amendment of section
4—Interpretation
15 Amendment of section 20—Orders for
compensation
16 Insertion of section 32A
32A Victim may
exercise rights through an appropriate representative
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Victims of Crime)
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 must
nevertheless allow particulars furnished under this section to include a victim
impact statement unless the court determines that it would not 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(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) (but despite any other provision of
this Act), 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 some other
representative of the body corporate satisfactory to the court,
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 or other
person).
(6) Section 7A—after subsection (4) insert:
(5) In this section—
prescribed summary offence means a summary offence that
results in the death of a victim or a victim suffering total
incapacity;
total incapacity—a victim suffers total incapacity if
the victim is permanently physically or mentally incapable of independent
function.
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) Nothing prevents a statement to be furnished to a court under
section 7A or 7B from containing recommendations relating to the sentence
to be determined by the court.
(3) A copy of a statement to be furnished to a court under section 7A
or 7B must be made available for inspection by 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.
8—Amendment of
section 19A—Restraining orders may be issued on finding of guilt or
sentence
Section 19A—after subsection (2) insert:
(3) A court must, on finding a person guilty of a sexual offence or on
sentencing a person for a sexual offence—
(a) consider whether or not an order should be issued under this section;
and
(b) if the court determines that an order should not be issued under this
section—give reasons for that determination (and the determination is
subject to appeal as if it were an order of the court made on sentence).
(4) In this section—
sexual offence means—
(a) rape; or
(b) compelled sexual manipulation; or
(c) indecent assault; or
(d) any offence involving unlawful sexual intercourse or an act of gross
indecency; or
(e) incest; or
(f) any offence involving sexual exploitation or abuse of a child, or
exploitation of a child as an object of prurient interest; or
(g) any attempt to commit, or assault with intent to commit, any of the
foregoing offences.
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.
Part 3—Amendment
of Criminal Law Consolidation
Act 1935
10—Amendment of
section 269R—Reports and statements to be provided to
court
(1) Section 269R(2)—delete "this section" and substitute:
subsection (1)
(2) Section 269R—after subsection (2) insert:
(3) If a court is fixing a limiting term in proceedings under this
Division relating to an alleged indictable offence or prescribed summary
offence, a person who has suffered injury, loss or damage resulting from the
defendant's conduct may furnish the court with a statement of a kind referred to
in section 7A of the Criminal Law (Sentencing) Act 1988 (a
victim impact statement), as if the defendant had been convicted
of the offence and the court was determining sentence (and the court must deal
with the statement in all respects as if it were a statement furnished under
that section).
(4) However, the court need not comply with section 7A(3b) and (3c) of the
Criminal Law (Sentencing) Act 1988 if the court is satisfied
that—
(a) the defendant is incapable of understanding the victim impact
statement; or
(b) having regard to the nature of the defendant's mental impairment, it
would be inappropriate for the defendant to be present.
(5) If a court is fixing a limiting term in proceedings under this
Division, the Crown or the Commissioner for Victim's Rights may furnish the
court with a statement of a kind referred to in section 7B of the Criminal
Law (Sentencing) Act 1988 (a neighbourhood impact
statement or a social impact statement) as if the court
were determining sentence for an offence (and the court must deal with the
statement in all respects as if it were a statement furnished under that
section).
(6) In this section—
prescribed summary offence has the same meaning as in section
7A of the Criminal Law (Sentencing) Act 1988.
Part 4—Amendment
of Defamation
Act 2005
11—Amendment of
section 25—Defence of absolute privilege
Section 25(2)—after paragraph (c) insert:
or
(d) the matter is published by a person or body in any circumstances
specified in Schedule a1.
After section 42 insert:
Schedule a1—Additional publications to which
absolute privilege applies
1—Matters arising out of proceedings of Parole
Board
(1) Without limiting section 25(2)(a) to (c), matter that is
published—
(a) by the Parole Board of South Australia in a report or other document
under the Correctional Services Act 1982 or any other Act;
or
(b) by a registered victim of an offence in the course of, or for the
purposes of, any proceedings of the Parole Board of South Australia relating to
the offender.
(2) In this clause—
registered victim has the same meaning as in the
Correctional Services Act 1982.
Part 5—Amendment
of Freedom of Information
Act 1991
13—Amendment of
Schedule 2—Exempt agencies
Schedule 2, (k)—delete "and the Director of Public Prosecutions" and
substitute:
, the Director of Public Prosecutions and the Commissioner for Victims'
Rights
Part 6—Amendment
of Victims of Crime
Act 2001
14—Amendment of
section 4—Interpretation
Section 4, definition of homicide—delete "or
manslaughter" and substitute:
, manslaughter or an offence against section 14 of the Criminal Law
Consolidation Act 1935 (criminal neglect) where the victim
dies
15—Amendment of
section 20—Orders for compensation
(1) Section 20(5)—delete "in favour of a claimant" and
substitute:
in respect of injury to a claimant caused by an offence
(2) Section 20—after subsection (5) insert:
(5a) The court must not make an order for compensation for grief or
funeral expenses in favour of a claimant if the court—
(a) is satisfied beyond reasonable doubt that the victim's death occurred
while the claimant was engaged in conduct constituting an indictable offence;
and
(b) is satisfied on the balance of probabilities that the claimant's
conduct contributed materially to the death of the victim,
(unless the court is satisfied that, in the circumstances of the particular
claim, failure to compensate would be unjust).
(3) Section 20(6)—delete "subsection (5)(a)" and
substitute:
subsections (5)(a) and (5a)(a)
Before section 33 insert:
32A—Victim may exercise rights through an
appropriate representative
(1) Rights granted to a victim under this, or any other, Act may be
exercised on behalf of the victim by an appropriate representative chosen by the
victim for that purpose.
Note—
Such rights would include (without limitation) the right to request
information under this or any other Act, the right to make a claim for
compensation under this or any other Act and the right to furnish a victim
impact statement under the Criminal Law (Sentencing)
Act 1988.
(2) This section does not apply to rights, or rights of a kind, prescribed
by the regulations.
(3) In this section—
appropriate representative, in relation to a victim, 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 victim;
(e) another person who, in the opinion of the Commissioner for Victims'
Rights, would be suitable to act as an appropriate representative.