South Australian Numbered Acts South Australian Numbered Acts7—Amendment of section 23—Offenders incapable of controlling, or
unwilling to control, sexual instincts
(1) Section 23(1),
definition of "offence to which this section applies —delete the
definition and substitute:
"person to whom this section applies" means—
(a) a
person convicted by the Supreme Court of a relevant offence; or
(b) a
person remanded by the District Court or the Magistrates Court under
subsection (2) to be dealt with by the Supreme Court under this section; or
(c) a
person who is the subject of an application by the Attorney-General under
subsection (2a);
"relevant offence" means—
(a) an
offence under section 48, 49, 56, 58, 59, 63, 63A, 63B, 69, 72 or 74 of the
Criminal Law Consolidation Act 1935 ;
(b) an
offence under section 23 of the Summary Offences Act 1953 ;
(c) any
other offence where the evidence indicates that the defendant may be incapable
of controlling, or unwilling to control, his or her sexual instincts;
"unwilling"—a person to whom this section applies will be regarded as
unwilling to control sexual instincts if there is a significant risk that the
person would, given an opportunity to commit a relevant offence, fail to
exercise appropriate control of his or her sexual instincts.
(2) Section 23(2) to
(6)—delete subsections (2) to (6) and substitute:
(2) If, in proceedings
before the District Court or Magistrates Court, a person is convicted of a
relevant offence and—
(a) the
court is of the opinion that the defendant should be dealt with under this
section; or
(b) the
prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the
convicted person, in custody or on bail, to appear before the Supreme Court to
be dealt with under this section.
(2a) If a person has
been convicted of a relevant offence, the Attorney-General may, while the
person remains in prison serving a sentence of imprisonment, apply to the
Supreme Court to have the person dealt with under this section.
(3) The Supreme Court
will direct at least 2 legally qualified medical practitioners nominated by
the Court to inquire into the mental condition of a person to whom this
section applies and report to the Court on whether the person is incapable of
controlling, or unwilling to control, his or her sexual instincts.
(4) For the purpose of
an inquiry under subsection (3), each medical practitioner—
(a) must
carry out an independent personal examination of the person; and
(b) may
have access to any evidence before the court by which the person was
convicted; and
(c) may
obtain the assistance of a psychologist, social worker, community corrections
officer or any other person.
(5) The Court may
order that a person to whom this section applies be detained in custody until
further order if—
(a) the
Court, after considering the medical practitioners' reports and any relevant
evidence or representations that the person may desire to put to the Court, is
satisfied that the order is appropriate; or
(b) the
person refuses to cooperate with an inquiry or examination under this section
and the Court, after considering any relevant evidence and representations
that the person may desire to put to the Court, is satisfied that the order is
appropriate.
(6) If a person to
whom this section applies has not been sentenced for a relevant offence, the
Supreme Court will deal with the question of sentence at the same time as it
deals with the question whether an order is to be made under this section and,
if the Court decides to make such an order, the order may be made in addition
to, or instead of, a sentence of imprisonment.