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South Australia
Statutes Amendment (Recidivist Young Offenders and Youth
Parole Board) Bill 2009
A BILL FOR
An Act to amend the Criminal Law Consolidation Act 1935, the
Criminal Law (Sentencing) Act 1988 and the Young Offenders
Act 1993.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Criminal Law Consolidation
Act 1935
4 Amendment of section 269V—Custody,
supervision and care
Part 3—Amendment of Criminal Law (Sentencing)
Act 1988
5 Amendment of heading to Part 2 Division 2A
6 Amendment of section 20A—Interpretation and
application
7 Amendment of section 20B—Declaration that person is
serious repeat offender
8 Insertion of section
20C
20C Declaration that youth is recidivist young
offender
9 Amendment of section 23—Offenders incapable of
controlling, or unwilling to control, sexual instincts
10 Amendment of
section 32—Duty of court to fix or extend non-parole
periods
11 Amendment of section 33—Interpretation
Part 4—Amendment of Young Offenders
Act 1993
12 Amendment of section
4—Interpretation
13 Insertion of section
5A
5A Victims Register
14 Amendment of section
6—Informal cautions
15 Amendment of section 23—Limitation on
power to impose custodial sentence
16 Amendment of section 37—Release
on licence of youths convicted of murder
17 Insertion of heading to Part 5
Division 3 Subdivision 1
18 Amendment of section 38—Establishment of
Training Centre Review Board
19 Substitution of section
39
39 Reviews, etc and proceedings of Training Centre Review
Board
20 Insertion of heading to Part 5 Division 3 Subdivision
2
21 Substitution of section 41
Subdivision 3—Conditional release from
detention
41 Application and interpretation of
Subdivision
41A Conditional release from
detention
41B Release on condition of home
detention
41C What happens if youth fails to observe
condition of release
22 Insertion of heading to Part 5 Division 3
Subdivision 4
Part 5—Review of Statutes Amendment (Recidivist
Young Offenders and Youth Parole Board) Act 2009
23 Review of
Act
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Recidivist Young
Offenders and Youth Parole Board) Act 2009.
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 269V—Custody, supervision and care
Section 269V—after subsection (3) insert:
(4) The Minister or the Parole Board (as the case may be) may delegate a
power or function under this section—
(a) to a person for the time being performing particular duties or holding
or acting in a particular position; or
(b) to any other person or body that, in the delegator's opinion, is
competent to perform or exercise the relevant functions or powers.
(5) A delegation under subsection (4)—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the delegator to act in any
matter; and
(d) is revocable at will by the delegator.
Part 3—Amendment
of Criminal Law (Sentencing)
Act 1988
5—Amendment of
heading to Part 2 Division 2A
Part 2, Division 2A, heading—delete "offenders" and
substitute:
adult offenders and recidivist young offenders
6—Amendment of
section 20A—Interpretation and application
(1) Section 20A(1), definition of serious drug offence,
(a)—after "Controlled Substances Act 1984" insert:
or a substantially similar offence against a corresponding previous
enactment
(2) Section 20A(1), definition of serious
offence—after paragraph (a) insert:
(ab) an offence against a law of the Commonwealth dealing with the
unlawful importation of drugs into Australia; or
(3) Section 20A(1), definition of serious offence,
(b)(i)—delete "against the person"
(4) Section 20A(1), definition of serious offence,
(b)(vi)—delete subparagraph (vi) and substitute:
(vi) an offence against a corresponding previous enactment substantially
similar to an offence referred to in any of the preceding
subparagraphs;
(vii) a conspiracy to commit, or an attempt to commit, an offence referred
to in any of the preceding subparagraphs; or
(5) Section 20A(1), definition of serious
offence—after paragraph (c) insert:
or
(d) an offence against the law of another State or a Territory that would,
if committed in this State, be a serious offence;
(6) Section 20A(1), definition of serious sexual offence,
(a)—after subparagraph (i) insert:
(ia) an offence against a corresponding previous enactment substantially
similar to an offence referred to in subparagraph (i);
(7) Section 20A(2)—delete subsection (2) and substitute:
(2) For the purposes of this Division, an offence will not be regarded as
a serious offence unless the maximum penalty prescribed for the offence is, or
includes, imprisonment for at least 5 years.
(3) An offence is one to which this Division applies if the offence is a
serious offence and—
(a) a sentence of imprisonment (other than a suspended sentence) has been
imposed for the offence; or
(b) if a penalty is yet to be imposed—a sentence of imprisonment
(other than a suspended sentence) is, in the circumstances, the appropriate
penalty.
7—Amendment of
section 20B—Declaration that person is serious repeat
offender
(1) Section 20B(1)(a)—after "the person" insert:
(whether as an adult or as a youth)
(2) Section 20B(1)(a)(i)—delete "section" and substitute:
Division
(3) Section 20B(1)(b)—after "the person" insert:
(whether as an adult or as a youth)
(4) Section 20B(2)—delete subsection (2)
After section 20B insert:
20C—Declaration that youth is recidivist young
offender
(1) A youth is liable to be declared a recidivist young offender if the
following conditions apply:
(a) the youth—
(i) has committed on at least 3 separate occasions an offence to which
this Division applies (whether or not the same offence on each occasion);
and
(ii) has been convicted of those offences; or
(b) the youth—
(i) has committed on at least 2 separate occasions a serious sexual
offence against a person or persons under the age of 14 years (whether or not
the same offence on each occasion); and
(ii) has been convicted of those offences.
(2) If a court convicts a youth of a serious offence, and the youth is
liable, or becomes liable as a result of the conviction, to a declaration that
he or she is a recidivist young offender, the court—
(a) must consider whether to make such a declaration; and
(b) if of the opinion that the youth's history of offending warrants a
particularly severe sentence in order to protect the community—should make
such a declaration.
(3) If a court convicts a youth of a serious offence, and the youth is
declared (or has previously been declared) to be a recidivist young
offender—
(a) the court is not bound to ensure that the sentence it imposes for the
offence is proportional to the offence (but, in the case of the Youth Court, the
limitations relating to a sentence of detention under section 23 of the
Young Offenders Act 1993 apply to the sentence that may be imposed
by the Youth Court on the recidivist young offender); and
(b) any non-parole period fixed in relation to the sentence must be at
least four-fifths the length of the sentence.
9—Amendment of
section 23—Offenders incapable of controlling, or unwilling to control,
sexual instincts
Section 23(1), definition of relevant offence—after
paragraph (b) insert:
(ba) an offence against a corresponding previous enactment substantially
similar to an offence referred to in either of the preceding
paragraphs;
10—Amendment of
section 32—Duty of court to fix or extend non-parole
periods
Section 32(5a)—delete subsection (5a) and substitute:
(5a) If—
(a) a court sentences a person under section 18A to the
1 penalty for a number of offences; and
(b) a mandatory minimum non-parole period is prescribed (mandatory
period) in respect of any of those offences,
any non-parole period to be fixed by the court under that section must be a
period not less than the mandatory period prescribed in respect of the relevant
offence.
11—Amendment of
section 33—Interpretation
(1) Section 33(1), definition of serious sexual offence,
(a)—after subparagraph (i) insert:
(ia) an offence against a corresponding previous enactment substantially
similar to an offence referred to in subparagraph (i);
(2) Section 33(1), definition of serious sexual offence,
(a)(ii)—delete "those offences" and substitute:
the offences referred to in either of the preceding subparagraphs
Part 4—Amendment
of Young Offenders
Act 1993
12—Amendment of
section 4—Interpretation
(1) Section 4—after the definition of Department
insert:
domestic partner means a person who is a domestic partner
within the meaning of the Family Relationships Act 1975, whether
declared as such under that Act or not;
(2) Section 4—after the definition of homicide
insert:
immediate family of a victim means—
(a) a spouse or domestic partner;
(b) a parent;
(c) a grandparent;
(d) a child (including an adult child);
(e) a grandchild (including an adult grandchild);
(f) a brother or sister;
injury means physical or mental injury, and includes
pregnancy, mental shock and nervous shock;
(3) Section 4, definition of police officer—delete the
definition and substitute:
recidivist young offender means a youth who is declared under
Part 2 Division 2A of the Criminal Law (Sentencing)
Act 1988 to be a recidivist young offender;
registered victim includes a member of a victim's immediate
family whose name is entered in the Victims Register;
(4) Section 4—after the definition of Registrar
insert:
spouse—a person is the spouse of another if they are
legally married;
(5) Section 4—after the definition of Training Centre Review
Board insert:
victim of an offence means a person who suffers injury as a
result of the offence;
Victims Register—see section 5A;
(6) Section 4—after the definition of Youth Justice
Co-ordinator insert:
Youth Parole Board means the Training Centre Review Board as
constituted from time to time under Part 5 Division 3 to review the
progress and circumstances of a recidivist young offender, or hear and determine
any other matter relating to a recidivist young offender assigned to the Board
under this Act.
After section 5 insert:
5A—Victims Register
(1) The Chief Executive must keep a Victims Register for the purposes of
this Act.
(2) The victim of an offence for which a youth is sentenced to detention
or imprisonment or, if the victim is dead or under an incapacity or in
prescribed circumstances, a member of the victim's immediate family, may apply
in writing to the Chief Executive to have the following information entered in
the Victims Register:
(a) the applicant's name;
(b) the applicant's contact address and (if supplied) telephone number or
the name, contact address and (if supplied) telephone number of a person
nominated by the applicant to receive information under this Act on his or her
behalf;
(c) any information (including the name of the youth) in the applicant's
possession that may assist the Chief Executive to identify the youth.
(3) The Chief Executive is entitled to assume the accuracy of information
supplied under subsection (2) without further inquiry.
(4) The Victims Register must also contain any other information
prescribed by the regulations.
(5) The Chief Executive must, when requested to do so by the Training
Centre Review Board, provide the Board with information derived from the Victims
Register.
(6) If the Victims Register includes particulars of a person nominated by
a registered victim to receive information under this Act on his or her behalf,
any information or notification required or authorised by this Act to be given
to the registered victim must, instead, be given to the person so nominated (and
where such information or notification is to be given at the request of the
registered victim, the person so nominated is entitled to make such a request as
if he or she were the registered victim).
(7) A person must not divulge information derived from the Victims
Register, being information obtained (whether by the person or some other
person) in the administration or enforcement of this Act,
except—
(a) as required or authorised by this Act or any other Act or law;
or
(b) as reasonably required in connection with the administration or
enforcement of this Act or any other prescribed Act; or
(c) for the purposes of legal proceedings arising out of the
administration or enforcement of this Act; or
(d) with the consent of the registered victim to whom the information
relates.
14—Amendment of
section 6—Informal cautions
Section 6(3)—delete subsection (3) and substitute:
(3) A record (whether made before or after the commencement of this
subsection) of an informal caution given to a youth does not constitute a
criminal record of the youth and may not be referred to—
(a) for the purposes of a criminal record check; or
(b) without the youth's consent—in any judicial
proceedings.
(4) A record of an informal caution made and kept before the commencement
of this subsection will be taken to have been legally made and kept.
15—Amendment of
section 23—Limitation on power to impose custodial
sentence
Section 23(4)—delete subsection (4) and substitute:
(4) A sentence of detention must not be imposed for an offence
unless—
(a) the offender is a recidivist young offender; or
(b) in any other case—the Court is satisfied that a sentence of a
non-custodial nature would be inadequate—
(i) because of the gravity or circumstances of the offence; or
(ii) because the offence is part of a pattern of repeated
offending.
16—Amendment of
section 37—Release on licence of youths convicted of
murder
(1) Section 37—after subsection (1) insert:
(1a) When determining an application under subsection (1)—
(a) if the application is made by a recidivist young
offender—despite any other provision of this Act, the paramount
consideration of the Supreme Court should be the safety of the
community;
(b) if the application is made by any other youth—the
Supreme Court should have regard to the balance to be achieved
between—
(i) the protection of the community; and
(ii) the need to rehabilitate the youth;
(c) in all cases—the Supreme Court should also take the following
matters into consideration:
(i) any relevant remarks made by the court in passing sentence;
(ii) if, in relation to an offence for which a youth was sentenced to
imprisonment for life, there is a registered victim—the impact that the
release of the youth on licence is likely to have on the registered victim and
the registered victim's family;
(iii) the behaviour of the youth while in detention;
(iv) any reports provided to the Court as required by the Court;
(v) the probable circumstances of the youth after release from
detention;
(vi) any other matters that the Court thinks are relevant.
(2) Section 37(7)(b)—delete "a justice" and substitute:
the Youth Court
(3) Section 37(8)(b)—delete "a justice" and substitute:
the Youth Court
(4) Section 37(9)—delete "a justice" and substitute:
the Youth Court
(5) Section 37(9a)—delete "A justice" and substitute:
The Youth Court
17—Insertion of
heading to Part 5 Division 3 Subdivision 1
Before section 38 insert:
Subdivision 1—Training Centre Review
Board
18—Amendment of
section 38—Establishment of Training Centre Review
Board
(1) Section 38(2)—after paragraph (c) insert:
(ca) 2 persons with appropriate skills and experience in matters related
to the impact of crime on victims and the needs of victims of crime in relation
to the criminal justice system, appointed by the Governor on the recommendation
of the Attorney-General; and
(2) Section 38(2)(d)—delete paragraph (d) and substitute:
(d) 2 persons (who must be police officers or former police officers) with
appropriate skills and experience, appointed by the Governor on the
recommendation of the Minister responsible for the administration of the
Police Act 1998; and
(3) Section 38(2)(e)—delete "appointed by the Governor on the
nomination of the Minister for Aboriginal Affairs" and substitute:
, appointed by the Governor on the nomination of the Minister responsible
for the administration of the Aboriginal Heritage Act 1988
(4) Section 38(9) and (10)—delete subsections (9) and (10)
Section 39—delete the section and substitute:
39—Reviews, etc and proceedings of Training Centre
Review Board
(1) The Training Centre Review Board has the following functions in
respect of a youth who has been sentenced to detention in a training
centre:
(a) to conduct a review of the progress and circumstances of the youth
while in the training centre—
(i) at intervals of not more than 6 months; and
(ii) at any other time on the request of the Chief Executive;
(b) to hear and determine any other matter relating to the youth assigned
to the Board under this Act.
(2) The following provisions apply in proceedings before the Training
Review Board under this Act in respect of a youth:
(a) if the youth is not a recidivist young offender—the Training
Centre Review Board must be constituted of—
(i) a Judge (who will preside at the sitting); and
(ii) 4 of the appointed members (of whom at least 1 must be a member
appointed under section 38(2)(e) if the youth is an Aboriginal
youth);
(b) if the youth is a recidivist young offender—the Training Centre
Review Board will sit as the Youth Parole Board and be constituted
of—
(i) a Judge (who will preside at the sitting); and
(ii) 4 of the appointed members, of whom—
(A) at least 1 must be a member appointed under section 38(2)(ca);
and
(B) at least 1 must be a member appointed under section 38(2)(d);
and
(C) if the recidivist young offender is an Aboriginal youth—at least
1 must be a member appointed under section 38(2)(e).
(3) The Training Centre Review Board must notify the following persons of
the day and time fixed by the Board for proceedings before the Board:
(a) the youth to whom the proceedings relate;
(b) a guardian of the youth;
(c) the Chief Executive;
(d) if, in relation to an offence for which the youth was detained, there
is a registered victim—the registered victim.
(4) However, the Training Centre Review Board is not required to notify
the registered victim if the victim has indicated to the Board that he or she
does not wish to be so notified.
(5) In any proceedings before the Training Centre Review Board relating to
a youth (whether or not a recidivist young offender)—
(a) the legal representative, and a guardian, of the youth must be given
the opportunity to make submissions to the Board; and
(b) the registered victim may make such submissions to the Board as he or
she thinks fit in writing or, by prior arrangement with the Board, in
person.
(6) If a period of detention to which a youth has been sentenced will
extend past the youth's 18th birthday, the Training Centre Review Board
must, at the last periodical review before that birthday, consider whether the
youth should be transferred to complete the period of detention in a prison
(and, if the Board does so determine, the youth will be transferred to prison on
or after his or her birthday in accordance with the Board's
determination).
20—Insertion of
heading to Part 5 Division 3 Subdivision 2
Before section 40 insert:
Subdivision 2—Leave of absence
Section 41—delete the section and substitute:
Subdivision 3—Conditional release from
detention
41—Application and interpretation of
Subdivision
(1) This Subdivision does not apply to a youth—
(a) who has been dealt with as an adult and is serving a sentence or part
of a sentence of imprisonment in a training centre; or
(b) to whom Division 2 applies; or
(c) who is serving a sentence of detention of less than
2 months.
(2) In this Subdivision, if a reference to the Training Centre
Review Board, or the Board, is made in relation to a youth
who is a recidivist young offender—
(a) the reference will be taken to be a reference to the Youth
Parole Board; and
(b) in carrying out any function assigned to the Training Centre Review
Board under this Subdivision, the Board must be constituted as the Youth Parole
Board in accordance with section 39(2)(b).
41A—Conditional release from
detention
(1) A youth who is serving a period of detention in a training centre may
be released from detention by the Training Centre Review Board in accordance
with this Subdivision.
(2) The provisions set out below apply to the release from detention of a
youth other than a recidivist young offender:
(a) the youth must have completed at least two-thirds of the period of
detention in a training centre to which he or she has been sentenced;
(b) in determining whether the youth should be released from detention,
the Training Centre Review Board—
(i) must be satisfied that—
(A) the behaviour of the youth during the period of detention has been
satisfactory; and
(B) there is no undue risk that the youth would, if released under this
Subdivision, re-offend;
(ii) if, in relation to an offence for which the youth was detained, there
is a registered victim—must take into consideration the impact that the
release of the youth is likely to have on the registered victim and the
registered victim's family;
(c) the release of the youth must be subject to the following
conditions:
(i) a condition that he or she not commit any offence;
(ii) a condition that he or she be under the supervision of an officer of
the Department and that the youth obey the directions of that officer;
(iii) any other condition that the Board thinks fit;
(d) a decision of the majority of the Board is a decision of the
Board.
(3) The provisions set out below apply to the release from detention of a
youth who is a recidivist young offender:
(a) the recidivist young offender must have completed at least four-fifths
of the period of detention in a training centre to which he or she has been
sentenced;
(b) in determining whether the recidivist young offender should be
released from detention—
(i) despite any other provision of this Act, the paramount consideration
of the Youth Parole Board must be the safety of the community; and
(ii) the Youth Parole Board must also take the following matters into
consideration:
(A) the likelihood of the recidivist young offender re-offending if
released from detention;
(B) the likelihood of the recidivist young offender complying with the
conditions of release;
(C) if, in relation to an offence for which the recidivist young offender
was sentenced to a period of detention in a training centre, there is a
registered victim—the impact that the release of the recidivist young
offender is likely to have on the registered victim and the registered victim's
family;
(D) the behaviour of the recidivist young offender while in
detention;
(E) the behaviour of the recidivist young offender during any previous
release from detention;
(F) any reports provided to the Board as required by the Board;
(G) the probable circumstances of the recidivist young offender after
release from detention;
(H) any other matters that the Board thinks are relevant;
(c) the release of the recidivist young offender must be subject to the
following conditions:
(i) a condition that he or she not commit any offence;
(ii) a condition that he or she be under the supervision of an officer of
the Department and that he or she obey the directions of that officer;
(iii) any other condition that the Board thinks fit;
(d) a decision of the majority of the Board is a decision of the
Board.
(4) A condition of release of a youth under this section may, for any
proper reason, be varied or revoked at any time as follows:
(a) in the case of a condition under subsection (2)(c)—by the
Training Centre Review Board;
(b) in the case of a condition under subsection (3)(c)—by the
Youth Parole Board.
(5) Subject to this Subdivision, the conditions on which a youth is
released from a training centre under this Subdivision are binding on the youth
for the unexpired period of the detention order.
41B—Release on condition of home
detention
(1) The Training Centre Review Board may release a youth on condition that
the youth remain at a residence specified by the Board for the remainder of the
unexpired balance of the term of detention or such shorter period as the Board
may specify and, if a youth is released on such a condition, the provisions of
Division 2A (except for subsections (4), (5) and (6) of
section 37C and section 37D(1)) apply as if—
(a) the order of the Board were a sentence of home detention imposed by
the Court; and
(b) a reference to the Court were a reference to the Board.
(2) The Training Centre Review Board—
(a) must not release a youth on home detention unless it is satisfied that
accommodation is available at the residence it proposes to specify;
and
(b) should not release a youth on home detention if it is not satisfied
that adequate resources exist for the proper monitoring of the youth while on
home detention by a home detention officer.
41C—What happens if youth fails to observe
condition of release
(1) If a police officer or the Minister considers that a youth has failed
to observe any condition imposed by the Training Centre Review Board under this
Subdivision, the police officer or the Minister (as the case may be) (the
applicant) may apply to the Board for an order that the youth be
returned to a training centre.
(2) Subject to subsection (3), the applicant must cause a copy of an
application under subsection (1) to be served on the youth and a guardian
of the youth, and the application must be endorsed with a notice of the place,
date and time for the hearing of the application.
(3) If the applicant believes on reasonable grounds that, if served with
any such application, the youth would be likely to abscond, the applicant may
apply to the Youth Court—
(a) to issue a warrant for the apprehension of the youth; and
(b) to dispense with service of the application.
(4) The Court will not grant an application under subsection (3)
unless satisfied, by information given on oath, that there are reasonable
grounds to believe that, if served with the application, the youth would be
likely to abscond.
(5) If—
(a) a youth on whom an application is to be served cannot be found;
or
(b) a youth, having been served with the application, fails to attend
before the Training Centre Review Board on an application,
a member of the Board may apply to the Youth Court for a warrant for the
apprehension of the youth or may, with the concurrence of a second member of the
Board, issue such a warrant.
(6) The Court must, on application under subsection (5), issue a
warrant for the apprehension of the youth unless it is apparent, on the face of
the application, that no reasonable grounds exist for the issue of the
warrant.
(7) A warrant issued under this section authorises the apprehension of the
youth referred to in the warrant by a police officer or an officer of the
Department authorised for the purpose.
(8) A youth who has been apprehended on a warrant issued under this
section must be brought before the Training Centre Review Board as soon as
reasonably practicable, and may be detained by the Chief Executive in any place
(other than a prison) approved by the Minister until brought before the
Board.
(9) The Training Centre Review Board may order that a youth who has been
brought before the Board under this section be returned to detention under the
original order if satisfied that the youth has contravened a
condition.
(10) If a youth is returned to detention under the original
order—
(a) he or she is liable to serve the balance of the sentence unexpired as
at the date on which the breach of condition occurred; and
(b) the youth will be taken to have been serving that balance of sentence
during any period spent in custody pending determination of the proceedings for
breach of condition.
(11) However, instead of exercising its powers under subsection (9),
the Training Centre Review Board may impose a further condition on the youth's
release requiring the youth to perform a specified number of hours of community
service, if the Board is of the opinion that the breach of condition was not so
serious as to warrant returning the youth to detention.
22—Insertion of
heading to Part 5 Division 3 Subdivision 4
Before section 42 insert:
Subdivision 4—Absolute release from detention by
Court
Part 5—Review of
Statutes Amendment (Recidivist Young Offenders
and Youth Parole Board) Act 2009
(1) The Attorney-General must, within 3 years after the commencement of
the Statutes Amendment (Recidivist Young Offenders and Youth Parole Board)
Act 2009, in consultation with the Commissioner for Social Inclusion, cause
a review of the Act to be undertaken.
(2) The outcome of the review must be incorporated into a report and the
Attorney-General must ensure that a copy of the report is laid before each House
of Parliament.