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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Sentencing (Release on Licence) Amendment
Bill 2018
A BILL FOR
An Act to amend the
Sentencing
Act 2017
.
Contents
Part 2—Amendment
of Sentencing Act 2017
3Amendment of section 58—Discharge of
detention order under section 57
4Amendment of section 59—Release on
licence
5Amendment of section 61—Court may obtain
reports
6Amendment of section 62—Inquiries by
medical practitioners
7Amendment of section
63—Parties
8Amendment of section 64—Service on
guardian
9Amendment of section
65—Appeals
10Amendment of Schedule 1—Repeal and
transitional provisions
Part 3—Transitional provisions relating
to Sentencing (Release on Licence) Amendment Act 2018
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Sentencing (Release on Licence) Amendment
Act 2018.
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
3—Amendment
of section 58—Discharge of detention order under section
57
(1) Section 58—after subsection (1) insert:
(1a) An order for detention under section 57 cannot be discharged unless
the person subject to the order satisfies the Supreme Court
that—
(a) the person is both capable of controlling and willing to control the
person's sexual instincts; or
(b) the person no longer presents an appreciable risk to the safety of the
community (whether as individuals or in general) due to the person's advanced
age or infirmity.
(2) Section 58—after subsection (5) insert:
(6) If the discharge of an order for detention would result in the
immediate release of a person subject to the order from custody, the Supreme
Court may order that the discharge is not to take effect for such time as it
considers necessary for the purpose of enabling the person to undergo a suitable
pre-release program.
4—Amendment
of section 59—Release on licence
(1) Section 59—after subsection (1) insert:
(1a) A person detained in custody under this Division cannot be released
on licence unless the person satisfies the Supreme Court that—
(a) the person is both capable of controlling and willing to control the
person's sexual instincts; or
(b) the person no longer presents an appreciable risk to the safety of the
community (whether as individuals or in general) due to the person's advanced
age or infirmity.
(2) Section 59(19)—delete subsection (19)
5—Amendment
of section 61—Court may obtain reports
Section 61(1)—after "this Division" insert:
or Schedule 2
6—Amendment
of section 62—Inquiries by medical practitioners
Section 62—after "this Division" insert:
or Schedule 2
7—Amendment
of section 63—Parties
Section 63—after "this Division" insert:
or Schedule 2
8—Amendment
of section 64—Service on guardian
Section 64—after "this Division" insert:
or Schedule 2
9—Amendment
of section 65—Appeals
(1) Section 65(1)(c)—delete paragraph (c)
(2) Section 65(5)(a)(iii)—delete subparagraph (iii)
10—Amendment
of Schedule 1—Repeal and transitional provisions
Schedule 1—after Part 2 insert:
Part 3—Transitional provisions relating to
Sentencing (Release on Licence) Amendment
Act 2018
3—Transitional provisions
(1) Section 58 of this Act as in force immediately after the commencement
of Part 2 of the
Sentencing
(Release on Licence) Amendment Act 2018
applies to the following applications:
(a) an application under that section for the discharge of an order for
detention (whether the order for detention was made under section 57 of this Act
or section 23 of the repealed Act) where the application is made after that
commencement;
(b) an application under that section for the discharge of an order for
detention (whether the order for detention was made under section 57 of this Act
or section 23 of the repealed Act ) where the application was made but not
finalised before that commencement;
(c) an application under section 23A of the repealed Act for the discharge
of an order for detention under section 23 of the repealed Act where the
application was made but not finalised before that commencement.
(2) Section 59 of this Act as in force immediately after the commencement
of Part 2 of the
Sentencing
(Release on Licence) Amendment Act 2018
applies to the following applications:
(a) an application under that section for the release on licence from an
order for detention (whether the order for detention was made under section 57
of this Act or section 23 of the repealed Act) where the application is made
after that commencement;
(b) an application under that section for the release on licence from an
order for detention (whether the order for detention was made under section 57
of this Act or section 23 of the repealed Act) where the application was made
but not finalised before that commencement;
(c) an application under section 24 of the repealed Act for the release on
licence from an order for detention under section 23 of the repealed Act where
the application was made but not finalised before that commencement.
(3) In this clause—
repealed Act means the
Criminal
Law (Sentencing) Act 1988
.
After Schedule 1 insert:
Schedule 2—Re-consideration of authorisations to
release on licence under section 24 of repealed Act or section 59 of this
Act
1—Re-consideration of authorisations to release on
licence under section 24 of repealed Act or section 59 of this
Act
(1) This clause applies to a person subject to an order for detention
under section 23 of the repealed Act or section 57 of this Act who, before the
commencement of this clause, has been authorised by the Supreme Court under
section 24 of the repealed Act or section 59 of this Act (as the case may be) to
be released on licence.
(2) After the commencement of this clause, the Supreme Court may, on
application by the DPP—
(a) cancel the release on licence of a person to whom this clause applies;
or
(b) confirm the release on licence of a person to whom this clause
applies.
(3) For the purposes of
proceedings under this clause, the DPP may apply to a magistrate for a warrant
for the apprehension and detention of the person pending determination of the
proceedings.
(4) A magistrate must, on application under
subclause (3)
, 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.
(5) The release on licence of a person to whom this clause applies must
not be confirmed unless the person satisfies the Supreme Court
that—
(a) the person is both capable of controlling and willing to control the
person's sexual instincts; or
(b) the person no longer presents an appreciable risk to the safety of the
community (whether as individuals or in general) due to the person's advanced
age or infirmity.
(6) The Supreme Court
must, before determining an application under this clause, direct that at least
2 legally qualified medical practitioners (to be nominated by a prescribed
authority for the purpose) inquire into the mental condition of the person and
report to the Court on whether the person is incapable of controlling, or
unwilling to control, the person's sexual instincts.
(7) The paramount consideration of the Supreme Court when determining an
application under this clause must be to protect the safety of the community
(whether as individuals or in general).
(8) The Supreme Court
must also take the following matters into consideration when determining an
application under this clause:
(a) the reports of the medical practitioners (as directed and nominated
under
subclause (6)
) provided to the Court;
(b) any relevant evidence or representations that the person may desire to
put to the Court;
(c) a report provided to the Court by the appropriate board in accordance
with the direction of the Court for the purposes of assisting the Court to
determine the application, including—
(i) any opinion of the appropriate board on the effect that the release on
licence of the person has had, or would have, on the safety of the community;
and
(ii) —
(A) if the person has been released on licence—a report as to the
current circumstances of the person; or
(B) if the person has not yet been released on licence—a report as
to the probable circumstances of the person if the person is so released;
and
(iii) the recommendation of the appropriate board about whether the person
is suitable for release on licence;
(d) any other report required by the Court under section 61 of this
Act;
(e) any other matter that the Court thinks relevant.
(9) A copy of any report provided to the Supreme Court under
subclause (8)
must be given to each party to the proceedings or to counsel for those
parties.
(10) For the purposes of this clause—
appropriate board, in relation to proceedings under this
clause, means—
(a) if the person the subject of the proceedings is being detained in a
training centre, or has been released on licence from a training
centre—the Training Centre Review Board;
(b) in any other case—the Parole Board;
repealed Act means the
Criminal
Law (Sentencing) Act 1988
.