South Australian Numbered Acts South Australian Numbered Acts15—Insertion of Part 2 Division 2AA
After section 20 insert:
Division 2AA—Serious firearm offenders
20AA—Interpretation
(1) In this Division—
"serious drug offence" means an offence against section 32, 33, 33A, 33B, 33C, 33F, 33G, 33H, 33I, 33J, 33K, 33LA or 33LB of the Controlled Substances Act 1984 ;
"serious firearm offender" means a person who is, by virtue of the operation of section 20AAB, a serious firearm offender;
"serious firearm offence" means—
(a) an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or carriage of—
(i) a class H firearm—
(A) that is unregistered at the time of the offence or is registered in the name of a person other than the defendant; and
(B) for which the defendant does not, at the time of the offence, hold a firearms licence authorising possession of the firearm; or
(ii) a class C firearm or class D firearm that is an automatic firearm; or
(iii) a prescribed firearm (other than a firearm declared by the regulations to be excluded from the ambit of this subparagraph); or
(iv) any other firearm declared by the regulations to be included in the ambit of this paragraph; or
(b) an offence against the Criminal Law Consolidation Act 1935 or the Firearms Act 1977 involving the use or possession of a firearm and committed—
(i) while the defendant is the subject of a control order under the Serious and Organised Crime (Control) Act 2008 ; or
(ii) in the circumstances contemplated by section 5AA(1)(ga) of the Criminal Law Consolidation Act 1935 ; or
(iii) while the defendant is the subject of a firearms prohibition order; or
(c) an offence against section 29A of the Criminal Law Consolidation Act 1935 ; or
(d) an offence against the Firearms Act 1977 involving the use or possession of a firearm if the use or possession of the firearm occurred in the course of, or was for a purpose related to, the commission of a serious drug offence; or
(e) an offence against the Firearms Act 1977 committed while the defendant—
(i) is on bail (being bail that was, at the relevant time, subject to the condition imposed by section 11(1)(a) of the Bail Act 1985 ); or
(ii) is the subject of a bond under this or any other Act (being a bond that was, at the relevant time, subject to the condition imposed by section 42(a1)(a), or a condition of a similar kind); or
(iii) is on release from prison on home detention (being a release subject to the condition imposed by section 37A(3)(ca) of the Correctional Services Act 1982 ); or
(iv) is on parole (being parole that was, at the relevant time, subject to the condition imposed by section 68(1)(a)(ia) of the Correctional Services Act 1982 ); or
(v) is on release on licence from custody under this or any other Act (being a licence that was, at the relevant time, subject to a condition prohibiting the defendant from possessing a firearm, part of a firearm or ammunition).
(2) In this Division, the following terms have the same meaning as in the Firearms Act 1977 :
(a) automatic firearm;
(b) class C firearm;
(c) class D firearm;
(d) class H firearm;
(e) firearm;
(f) firearms prohibition order;
(g) prescribed firearm.
(3) For the purposes of this Division, a reference to imprisonment includes, in the case of a youth, a reference to detention in a training centre or home detention (within the meaning of the Young Offenders Act 1993 ).
20AAB—Serious firearm offenders
(1) A person will, by force of this section, be taken to be a "serious firearm offender" if he or she is convicted of a serious firearm offence (whether the offence was committed as an adult or as a youth).
(2) Subsection (1) does not apply in relation to a conviction of a serious firearm offence if—
(a) the defendant was prosecuted and punished as a principal offender in respect of the offence pursuant to section 267 of the Criminal Law Consolidation Act 1935 ; or
(b) the defendant's liability in respect of the offence derives solely from his or her involvement in a joint criminal enterprise (however described).
20AAC—Sentence of imprisonment not to be suspended
(1) Subject to subsection (2), but despite any other provision of this Act or any other Act or law, the following provisions apply in relation to the sentencing of a person who is a serious firearm offender for a serious firearm offence (including where the offence is the serious firearm offence that resulted in the person being a serious firearm offender):
(a) if the maximum penalty for the serious firearm offence includes a period of imprisonment—a sentence of imprisonment must be imposed on the person;
(b) the sentence of imprisonment cannot be suspended;
(c) section 18 does not apply in respect of the sentencing of the person;
(d) if—
(i) the person is also being sentenced in respect of other offences; and
(ii) 1 or more of those offences are not serious firearm offences,
section 18A does not apply to the sentencing of the person in respect of the serious firearm offence (however nothing in this paragraph affects the operation of section 18A in respect of the other offences).
(2) A court sentencing a person who is a serious firearm offender for a serious firearm offence may declare that subsection (1)(b) does not apply to the person if he or she satisfies the court, by evidence given on oath, that—
(a) his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law in respect of firearms offences set out in section 10(3a); and
(b) it is, in all the circumstances, appropriate to suspend the sentence.