South Australian Current Acts South Australian Current Acts96—Suspension of imprisonment on defendant entering into bond
(1) Subject to this
section, if a court has imposed a sentence of imprisonment on a defendant, the
court may, if it thinks that good reason exists for doing so, suspend the
sentence on condition that the defendant enter into a bond—
(a) to
be of good behaviour; and
(b) to
comply with the conditions of the bond referred to in subsection (2); and
(c) to
comply with any other conditions of the bond as the court thinks appropriate
and specifies in the bond.
(2) Subject to this
Act, a bond under this section is subject to the following conditions:
(a) a
condition prohibiting the defendant from possessing a firearm or ammunition or
any part of a firearm;
(b) a
condition requiring the defendant to submit to such tests (including testing
without notice) for gunshot residue as may be reasonably required by a person
or class of persons or body specified by the court.
(3) A sentence of
imprisonment may not be suspended under this section if the defendant is being
sentenced—
(a) to a
sentence of imprisonment that is to be served cumulatively on another term of
imprisonment, or concurrently with another term of imprisonment then being
served, or about to be served, by the defendant; or
(b) as
an adult to a period of imprisonment of 2 years or more for a
prescribed designated offence; or
(ba) as
an adult for a serious sexual offence; or
(c) as
an adult for a serious and organised crime offence or
specified offence against police; or
(d) 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 suspended a sentence of imprisonment or period of detention imposed
on the defendant for a designated offence.
(4) Despite
subsection (3)(a), if the period of imprisonment to which a defendant is
liable under 1 or more sentences is more than 3 months but less than
12 months, the sentencing court may, by order—
(a)
direct that the defendant serve a specified period (being not less than
1 month) of the imprisonment in prison; and
(b)
suspend the remainder of the sentence on condition that the defendant enter
into a bond of a kind described in subsection (1) that will have effect
on the defendant's release from prison.
(5) Despite
subsection (3)(b), if a defendant is being sentenced as an adult to a
period of imprisonment of 2 years or more for a prescribed designated
offence, the sentencing court may, by order—
(a)
direct that the defendant serve a specified period of the imprisonment in
prison (which, if a non-parole period has been fixed in respect of the
defendant, must be a period that is one-fifth of the non-parole period fixed);
and
(b)
suspend the remainder of the sentence on condition that the defendant enter
into a bond of a kind described in subsection (1) that will have effect
on the defendant's release from prison.
(6) Despite
subsection (3)(c) and (d), the court may, if satisfied that
exceptional circumstances exist for doing so—
(a)
suspend a sentence of imprisonment imposed on a defendant for a
serious and organised crime offence or specified offence against police, or
for a designated offence in the circumstances described in
subsection (3)(d), on condition that the defendant enter into a bond of a
kind described in subsection (1); or
(b) make
an order under subsection (4) in respect of a defendant being sentenced
for a serious and organised crime offence or specified offence against police,
or for a designated offence in the circumstances described in
subsection (3)(d), if the period of imprisonment to which the defendant
is liable under 1 or more sentences is more than 3 months but less
than 12 months.
(8) If a probationer
under a bond entered into under this section complies with the conditions of
the bond, the sentence of imprisonment is, on the expiration of the bond,
wholly extinguished.
(9) In this
section—
"designated offence" means any of the following offences under the
Criminal Law Consolidation Act 1935 :
(a) an
offence under section 13 or 13A;
(b) an
offence under section 19;
(c) an
offence under section 19AA;
(d) an
offence under section 19AC;
(e) an
offence under section 19A;
(f) an
offence under section 23 or 24;
(g) an
offence under section 29A;
(ga) an
offence against section 20AA(1), (2) or (4);
(h) an
offence under section 39;
(j) an
offence under section 137;
(k) an
offence under section 170;
(l) an
offence under section 270B if the offence against the person to which
that section applies is a relevant offence referred to in a preceding
paragraph;
"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 ;
"prescribed designated offence" means an offence under section 13
or 23 of the Criminal Law Consolidation Act 1935 ;
"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;
(ii)
an aggravated offence under section 172 or 251,
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 or 245; or
(b) any
of the following offences under the Controlled Substances Act 1984 :
(i)
an offence under section 32(1);
(ii)
an aggravated offence under section 32(2), 32(2a) or
32(3);
(iii)
an offence under section 33(1);
(iv)
an aggravated offence under section 33(2) or 33(3);
(v)
an aggravated offence under section 33A(1), 33A(2),
33A(3), 33A(4) or 33A(5);
(vi)
an offence under section 33F, 33G or 33H;
"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; or
(iii)
an offence against a corresponding previous enactment
substantially similar to an offence referred to in either of the preceding
subparagraphs; or
(iv)
an attempt to commit or an assault with intent to commit
any of the offences referred to in any of the preceding subparagraphs; or
(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 section 23(1) or 23(3) of the
Criminal Law Consolidation Act 1935 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.
(10) For the purposes
of this section, an offence occurred in "prescribed circumstances if—
(a) the
defendant was, at the time of the offence, 20 years of age or less; and
(b) the
circumstances of the offending, including the victim's age and the age
difference between the defendant and the victim, are such that it is
appropriate that the sentence be suspended; and
(c) the
defendant was not, at the time of the offence, a person in a
position of authority in relation to the victim.
(10a) If—
(a) the
defendant commits an offence under section 63B(3) of the
Criminal Law Consolidation Act 1935 ; and
(b) by
reason of that offence, the defendant is taken to have committed a
serious sexual offence for the purposes of this section; and
(c) the
victim of the offence is a fictitious person represented to the defendant as a
real person,
the court may, in considering the circumstances of the offending for the
purposes of subsection (10)(b) in relation to the victim's age and the
age difference between the defendant and the victim, take into consideration
the age that the defendant believed the victim to be at the time of the
offence.
(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.