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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Serious Firearm Offences)
Bill 2012
A BILL FOR
An Act to amend the Bail
Act 1985, the Correctional
Services Act 1982, the Criminal
Law (Sentencing) Act 1988, the Criminal
Law Consolidation Act 1935, the Summary
Offences Act 1953 and the Young
Offenders Act 1993.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment provisions
Part 2—Amendment of Bail
Act 1985
4Amendment of section
3—Interpretation
5Amendment of section 10A—Presumption
against bail in certain cases
6Amendment of section 11—Conditions of
bail
7Insertion of section
11A
11ABail authority may
direct person to surrender firearm etc
Part 3—Amendment of Correctional
Services Act 1982
8Amendment of section
4—Interpretation
9Amendment of section 37A—Release on home
detention
10Amendment of section 66—Automatic
release on parole for certain prisoners
11Amendment of
section 68—Conditions of release on parole
12Insertion of section
68A
68ABoard may direct
person to surrender firearm etc
13Amendment of section
71—Variation or revocation of parole conditions
Part 4—Amendment of Criminal Law
(Sentencing) Act 1988
14Amendment of
section 10—Matters to be considered by sentencing court
15Insertion
of Part 2 Division 2AA
Division 2AA—Serious firearm
offenders
20AAInterpretation
20AABSerious firearm
offenders
20AACSentence of imprisonment
not to be suspended
16Amendment of section 20A—Interpretation
and application
17Amendment of section 20B—Serious
repeat offenders
18Insertion of section
20BA
20BASentencing of
serious repeat offenders
19Amendment of section 24—Release on
licence
20Insertion of section
24A
24AAppropriate board may
direct person to surrender firearm etc
21Amendment of section
42—Conditions of bond
22Insertion of section
42A
42ACourt may direct
person to surrender firearm etc
23Amendment of section
44—Variation or discharge of bond
Part 5—Amendment of Criminal Law
Consolidation Act 1935
24Amendment of heading to Part 3
25Amendment
of section 21—Interpretation
26Insertion of Heading to Part 3 Division
7AB
27Insertion of section
32AA
32AADischarge of
firearms to injure etc
28Amendment of section
269O—Supervision
29Insertion of section
269OA
269OACourt may direct
defendant to surrender firearm etc
Part 6—Amendment of Summary Offences
Act 1953
30Substitution of section
51
51Throwing
missiles
Part 7—Amendment of Young Offenders
Act 1993
31Amendment of section
4—Interpretation
32Amendment of
section 15A—Interpretation
33Amendment of section 23—Limitation
on power to impose custodial sentence
34Amendment of section 37—Release on
licence of youths convicted of murder
35Amendment of section
41A—Conditional release from detention
36Insertion of Part 5 Division
3A
Division 3A—Directions relating to
firearms etc
41DTraining
Centre Review Board may direct youth to surrender firearm
etc
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Serious Firearm
Offences) Act 2012.
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 Bail Act 1985
4—Amendment
of section 3—Interpretation
(1) Section 3(1)—before the definition of bail
authority insert:
ammunition has the same meaning as in the Firearms
Act 1977;
(2) Section 3(1)—after the definition of financial
condition insert:
firearm has the same meaning as in the Firearms
Act 1977;
5—Amendment
of section 10A—Presumption against bail in certain
cases
Section 10A(2), definition of prescribed
applicant—after paragraph (d) insert:
or
(e) an applicant taken into custody in relation to a serious firearm
offence (within the meaning of Part 2 Division 2AA of the Criminal
Law (Sentencing) Act 1988).
6—Amendment
of section 11—Conditions of bail
Section 11(1)—delete subsection (1) and
substitute:
(1) Subject to this
Act, every grant of bail is subject to the following conditions:
(a) a condition prohibiting the applicant from possessing a firearm,
ammunition or any part of a firearm;
(b) a condition requiring the applicant to submit to such tests (including
testing without notice) for gunshot residue as may be reasonably required by the
bail authority, or a person or class of persons or body specified by the bail
authority.
(1a) A bail
authority may only vary or revoke the conditions imposed by
subsection (1)
if the bail authority is satisfied that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
person to whom the bail agreement relates does not represent an undue risk to
the safety of the public.
(1b) A bail authority that is a court can only be satisfied of the matters
referred to in
subsection (1a)
by evidence given on oath.
(1c) If a bail authority varies or revokes a condition imposed by
subsection (1),
the bail authority must make a written record of the reasons for its
decision.
(1d) Subject to this section, a bail authority may impose 1 or more
of the conditions referred to in subsection (2).
After section 11 insert:
11A—Bail authority may direct person to surrender
firearm etc
(1) A bail
authority may, in relation to a grant of bail that is subject to the condition
imposed by section 11(1)(a), direct the person to whom the grant of bail
relates to surrender forthwith at a police station specified by the bail
authority any firearm, ammunition or part of a firearm owned or possessed by the
person.
(2) A person who refuses or fails to comply with a direction under
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) No criminal liability attaches to a person to the extent that he or
she is complying with a direction under this section.
(4) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(5) No compensation
is payable by the Crown in respect of the exercise of a power or function under
this section.
(6) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
Part 3—Amendment
of Correctional Services
Act 1982
8—Amendment
of section 4—Interpretation
Section 4(1), definition of designated
condition—delete "the Board" and substitute:
this Act, or by the Board,
9—Amendment
of section 37A—Release on home detention
(1) Section 37A(3)—after paragraph (c) insert:
(ca) a condition prohibiting the prisoner from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) or any part of a firearm; and
(cb) a condition requiring the prisoner to submit to such tests (including
testing without notice) for gunshot residue as an authorised officer may
reasonably require; and
(2) Section 37A—after subsection (5) insert:
(5a) The Chief
Executive Officer may only vary or revoke the conditions imposed by
subsection (3)(ca) and (cb) on the release of a person on home detention if
he or she is satisfied that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public.
10—Amendment
of section 66—Automatic release on parole for certain
prisoners
Section 66(2)—after paragraph (ac) insert:
(ad) a prisoner who is a serious firearm offender (within the meaning of
Part 2 Division 2AA of the Criminal
Law (Sentencing) Act 1988); or
11—Amendment
of section 68—Conditions of release on parole
(1) Section 68(1)(a)—after subparagraph (i)
insert:
(ia) that the prisoner not possess a firearm or ammunition (both within
the meaning of the Firearms
Act 1977) or any part of a firearm; and
(2) Section 68(1)(a)(iii)—after subsubparagraph (B)
insert:
and
(C) submit to such tests (including testing without notice) for gunshot
residue as the community corrections officer may reasonably require,
(3) Section 68—after subsection (2) insert:
(2a) The conditions set out in subsection (1)(a)(ia)
and (iii)(C) are designated as conditions that, if breached, will result in
automatic cancellation of parole.
After section 68 insert:
68A—Board may direct person to surrender firearm
etc
(1) The Board may,
in relation to the release of a prisoner on parole that is subject to the
condition imposed by section 68(1)(a)(ia), direct the prisoner to surrender
forthwith at a police station specified by the Board any firearm, ammunition or
part of a firearm owned or possessed by the prisoner.
(2) A person who refuses or fails to comply with a direction under
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) No criminal liability attaches to a person to the extent that he or
she is complying with a direction under this section.
(4) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(5) No compensation
is payable by the Crown in respect of the exercise of a power or function under
this section.
(6) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
13—Amendment
of section 71—Variation or revocation of parole
conditions
Section 71—after subsection (4) insert:
(5) The Board may
only vary or revoke the conditions imposed by section 68(1)(a)(ia) and
(iii)(C) on the release on parole of a person if the Board is satisfied
that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public.
Part 4—Amendment
of Criminal Law (Sentencing)
Act 1988
14—Amendment
of section 10—Matters to be considered by sentencing
court
Section 10—after subsection (3) insert:
(3a) A primary
policy of the criminal law in relation to offences involving firearms is to
emphasise public safety by ensuring that, in any sentence for such an offence,
paramount consideration is given to the need for deterrence.
15—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 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
(d) 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.
16—Amendment
of section 20A—Interpretation and application
(1) Section 20A(1)—before the definition of home
invasion insert:
category A serious offence means any of the following
serious offences:
(a) home invasion;
(b) a serious and organised crime offence;
(c) a serious firearm offence;
(2) Section 20A(1)—after the definition of home
invasion insert:
serious and organised crime offence has the same meaning as
in the
Criminal
Law Consolidation Act 1935;
(3) Section 20A(1)—after the definition of serious drug
offence insert:
serious firearm offence means a serious firearm offence
within the meaning of Part 2 Division 2AA;
(4) Section 20A(1), definition of serious
offence—after paragraph (c) insert:
(ca) a serious firearm offence; or
(cb) a serious and organised crime offence; or
(5) Section 20A(1)—after the definition of serious
offence insert:
serious repeat offender means—
(a) a person who is a serious repeat offender pursuant to
section 20B(a1); or
(b) a person declared to be a serious repeat offender under
section 20B(1); or
(c) a person declared to be a serious repeat offender under
section 20B as in force immediately before the commencement of
section 17 of the Statutes
Amendment (Serious Firearm Offences) Act 2012;
(6) Section 20A(2)—after "offence" first occurring
insert:
(other than a serious firearm offence)
17—Amendment
of section 20B—Serious repeat offenders
(1) Section 20B—before subsection (1) insert:
(a1) A person will,
by force of this subsection, be taken to be a serious repeat
offender if the person (whether as an adult or as a
youth)—
(a) has committed on at least 3 separate occasions a category A
serious offence to which this Division applies (whether or not the same offence
on each occasion); and
(b) has been convicted of those offences.
(2) Section 20B(1)—delete "A person" and substitute:
Without limiting subsection (a1), a person
(3) Section 20B(1)—after paragraph (b) insert:
or
(c) the person (whether as an adult or as a youth)—
(i) has committed on at least 2 separate occasions a category A
serious offence (whether or not the same offence on each occasion);
and
(ii) has been convicted of those offences.
(4) Section 20B—after subsection (1) insert:
(1a) For the purposes of this section, when determining the number of
occasions on which a person has committed a particular kind of offence, the
offence for which the person is being sentenced is to be included if it is of
the relevant kind.
(5) Section 20B(4)—delete subsection (4)
After section 20B insert:
20BA—Sentencing of serious repeat
offenders
(1) The following
provisions apply in relation to the sentencing of a person who is a serious
repeat offender for an offence (including an offence that resulted in the person
being a serious repeat offender):
(a) the court sentencing the person is not bound to ensure that the
sentence it imposes for the offence is proportional to the offence;
(b) any non-parole period fixed in relation to the sentence must be at
least four-fifths the length of the sentence.
(2) However, a
court that is sentencing a person who is a serious repeat offender for an
offence may declare that
subsection (1)
does not apply if the person 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 of emphasising public safety;
and
(b) it is, in all the circumstances, not appropriate that he or she be
sentenced as a serious repeat offender.
19—Amendment
of section 24—Release on licence
(1) Section 24—after subsection (2) insert:
(2a) Subject to
this Act, every release of a person on licence under this section is subject to
the following conditions:
(a) a condition prohibiting the person from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) or any part of a firearm;
(b) a condition requiring the person 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 appropriate board.
(2) Section 24(3)—delete "The" and substitute:
Without limiting subsection (2a), the
(3) Section 24—after subsection (5a) insert:
(5b) The
appropriate board may only vary or revoke the conditions imposed by
subsection (2a) on the release of a person on licence if the board is
satisfied that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
person does not represent an undue risk to the safety of the public.
After section 24 insert:
24A—Appropriate board may direct person to
surrender firearm etc
(1) The appropriate
board may, in relation to the release of a person on licence under section 24
that is subject to the condition imposed by section 24(2a)(a), direct the person
to surrender forthwith at a police station specified by the appropriate board
any firearm, ammunition or part of a firearm owned or possessed by the
person.
(2) A person who refuses or fails to comply with a direction under
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) No criminal liability attaches to a person to the extent that he or
she is complying with a direction under this section.
(4) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(5) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(6) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
(7) In this section—
appropriate board has the same meaning as in section
24.
21—Amendment
of section 42—Conditions of bond
(1) Section 42—before subsection (1) insert:
(a1) Subject to
this Act, every bond under section 38 is subject to the following
conditions:
(a) a condition prohibiting the defendant from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) 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.
(2) Section 42(1)—After "Subject to this Act" insert:
and without limiting subsection (a1)
After section 42 insert:
42A—Court may direct person to surrender firearm
etc
(1) A probative
court may, in relation to a bond under section 38 that is subject to the
condition imposed by section 42(a1)(a), direct the probationer to surrender
forthwith at a police station specified by the court any firearm, ammunition or
part of a firearm owned or possessed by the probationer.
(2) No criminal liability attaches to a person to the extent that he or
she is complying with a direction under this section.
(3) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(4) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(5) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
23—Amendment
of section 44—Variation or discharge of bond
Section 44—after subsection (1b) insert:
(1c) A probative
court may only vary or revoke the conditions imposed by section 42(a1) on a
bond if the court is satisfied, by evidence given on oath, that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
probationer does not represent an undue risk to the safety of the
public.
Part 5—Amendment
of Criminal Law Consolidation
Act 1935
24—Amendment
of heading to Part 3
Heading to Part 3—after "person" insert:
etc
25—Amendment
of section 21—Interpretation
(1) Section 21, definition of lesser offence,
(a)—delete "some other offence against this Division" and
substitute:
another offence against this Division, Division 7AB or section 32A,
(2) Section 21, definition of lesser offence,
(b)—delete "some other offence against this Division" and
substitute:
another offence against this Division, Division 7AB
26—Insertion
of Heading to Part 3 Division 7AB
After section 31 insert:
Division 7AB—Special firearm
offences
After section 32 insert:
32AA—Discharge of firearms to injure
etc
(1) A person who, without lawful excuse, discharges a firearm intending to
injure, annoy or frighten any person is guilty of an offence.
Maximum penalty: Imprisonment for 8 years.
(2) A person who, without lawful excuse, discharges a firearm intending to
damage any property is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(3) A person who,
without lawful excuse, discharges a firearm and who is reckless as to whether
that act injures, annoys or frightens, or may injure, annoy or frighten, any
person is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(4) A person who,
without lawful excuse, discharges a firearm and who is reckless as to whether
that act damages, or may damage, any property is guilty of an offence.
Maximum penalty: Imprisonment for 3 years.
(5) In proceedings for an offence against this section, it is not
necessary for the prosecution to establish that a person was, in fact, injured,
annoyed or frightened or that property was, in fact, damaged (as the case
requires) by the defendant's act.
(6) In this section—
reckless—a person is reckless as to whether an act
injures, annoys or frightens, or may injure, annoy or frighten any person, or
damages, or may damage, any property, if the person—
(a) is aware of a substantial risk that the act could injure, annoy or
frighten any person or damage any property; and
(b) does the act despite the risk and without adequate
justification.
28—Amendment
of section 269O—Supervision
(1) Section 269O(1)(b)(ii)—delete "on conditions decided by the
court and specified in the licence." and substitute:
on the following conditions:
(A) the conditions imposed by subsection (1a);
(B) any other conditions decided by the court and specified in the
licence.
(2) Section 269O—after subsection (1) insert:
(1a) Subject to
this Act, every licence under subsection (1)(b)(ii) is subject to the
following conditions:
(a) a condition prohibiting the defendant from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) 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 body specified by the court.
(1b) A court may
only vary or revoke the conditions imposed by
subsection (1a)
if the defendant satisfies the court, by evidence given on oath,
that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
defendant does not represent an undue risk to the safety of the
public.
After section 269O insert:
269OA—Court may direct defendant to surrender
firearm etc
(1) The court by
which a defendant is declared to be liable to supervision under this Part may,
in relation to a supervision order that is subject to the condition imposed by
section 269O(1a)(a), direct the defendant to surrender forthwith at a
police station specified by the court any firearm, ammunition or part of a
firearm owned or possessed by the defendant.
(2) No criminal liability attaches to a person to the extent that he or
she is complying with a direction under this section.
(3) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(4) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(5) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.
Part 6—Amendment
of Summary Offences
Act 1953
Section 51—delete the section and substitute:
51—Throwing missiles
(1) A person who, without lawful excuse, throws a missile intending
to—
(a) injure, annoy or frighten any person; or
(b) damage any property,
is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(2) A person who,
without lawful excuse, throws a missile and who is reckless as to whether that
act—
(a) injures, annoys or frightens, or may injure, annoy or frighten, any
person; or
(b) damages, or may damage, any property,
is guilty of an offence.
Maximum penalty: Imprisonment for 1 year.
(3) In proceedings for an offence against this section, it is not
necessary for the prosecution to establish that a person was, in fact, injured,
annoyed or frightened or that property was, in fact, damaged (as the case
requires) by the defendant's act.
(4) In this section—
reckless—a person is reckless as to whether an act
injures, annoys or frightens, or may injure, annoy or frighten any person, or
damages or may damage any property, if the person—
(a) is aware of a substantial risk that the act could injure, annoy or
frighten any person or damage any property; and
(b) does the act despite the risk and without adequate
justification;
throw includes to discharge or project by means of any
mechanism or device.
Part 7—Amendment
of Young Offenders
Act 1993
31—Amendment
of section 4—Interpretation
Section 4(1)—after the definition of Registrar
insert:
serious firearm offender means a youth who is, pursuant to
section 20AAB of the
Criminal
Law (Sentencing) Act 1988, a serious firearm offender;
32—Amendment
of section 15A—Interpretation
Section 15A—after paragraph (b) insert:
(ba) if the youth is a serious firearm offender;
33—Amendment
of section 23—Limitation on power to impose custodial
sentence
Section 23(4)(a)—after "offender" second occurring
insert:
or a serious firearm offender
34—Amendment
of section 37—Release on licence of youths convicted of
murder
Section 37—after subsection (3) insert:
(3a) Subject to
this Act, every release of a youth on licence under this section is subject to
the following conditions:
(a) a condition prohibiting the youth from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) or any part of a firearm;
(b) a condition requiring the youth to submit to such tests (including
testing without notice) for gunshot residue as may be reasonably required by the
Training Centre Review Board, or a person or class of persons or body specified
by the Training Centre Review Board.
(3b) The Training
Centre Review Board may only vary or revoke the conditions imposed the release
of a youth on licence by
subsection (3a)
if the youth satisfies the Training Centre Review Board that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
youth does not represent an undue risk to the safety of the public.
35—Amendment
of section 41A—Conditional release from detention
(1) Section 41A(2)(c)—after subparagraph (ii)
insert:
(iia) a condition prohibiting the youth from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) or any part of a firearm;
(iib) a condition requiring the youth to submit to such tests (including
testing without notice) for gunshot residue as may be reasonably required by an
officer of the Department who is supervising the youth;
(2) Section 41A(3)(c)—after subparagraph (ii)
insert:
(iia) a condition prohibiting the youth from possessing a firearm or
ammunition (both within the meaning of the Firearms
Act 1977) or any part of a firearm;
(iib) a condition requiring the youth to submit to such tests (including
testing without notice) for gunshot residue as may be reasonably required by an
officer of the Department who is supervising the youth;
(3) Section 41A—after subsection (4) insert:
(4a) The Board may
only vary or revoke the conditions imposed by subsection (2)(c)(iia) and
(iib), or subsection (3)(c)(iia) and (iib), on the release from detention of a
youth if the youth satisfies the Board that—
(a) there are cogent reasons to do so; and
(b) the possession of a firearm, ammunition or part of a firearm by the
youth does not represent an undue risk to the safety of the public.
36—Insertion
of Part 5 Division 3A
After section 42 insert:
Division 3A—Directions relating to firearms
etc
41D—Training Centre Review Board may direct youth
to surrender firearm etc
(1) The Training
Centre Review Board may, in relation to the release from detention of a youth
that is subject to the condition imposed by section 37(3a)(a), or
section 41A(2)(c)(iia) or (3)(c)(iia), direct the youth to surrender
forthwith at a police station specified by the Training Centre Review Board any
firearm, ammunition or part of a firearm owned or possessed by the
defendant.
(2) A youth who refuses or fails to comply with a direction under
subsection (1)
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(3) No criminal liability attaches to a person to the extent that he or
she is complying with a direction under this section.
(4) The
Commissioner of Police must deal with any surrendered firearm, ammunition or
part of a firearm in accordance with the scheme set out in the
regulations.
(5) No compensation
is payable by the Crown or any other person in respect of the exercise of a
function or power under this section.
(6) The regulations may provide for the payment, recovery or waiver of
fees in respect of this section.