Criminal Law (Extended Supervision Orders) Bill

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (17:52): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted into Hansard without my reading them.

Leave granted.

The Criminal Law (Extended Supervision Orders) Bill 2015 (the 'Bill') creates a new type of order, called an extended supervision order ('ESO') designed to place restrictions on certain high risk offenders and provide for their continued supervision beyond the expiry of any term of imprisonment or parole period.

The intention of this legislation is to address future risk and enhance community safety.

ESOs are designed to apply to certain high risk offenders who have either:

served their entire sentence in prison and are due to be released into community under no supervision; or

been released on parole and their parole is expiring.

In both cases, under the current law, there is no option other than leaving the high risk offender to live in the community under no supervision. Under this Bill, the Attorney-General will have the power to apply to the Supreme Court for an ESO so that a high risk offender may be supervised and subject to conditions.

In summary:

an ESO can only be made in respect of a supervised high risk offender, being one who is serving a term of imprisonment or is under supervision on parole;

the application for the ESO needs to be made within the final 12 months of the offender's imprisonment or supervision; and

the ESO only commences operation once the offender is no longer imprisoned or supervised.

This is important reform. If a high risk offender has elected to serve his or her entire sentence without applying for parole, so that on release he or she will be unsupervised and not subject to any conditions, then this provides an option for supervision and conditions to be applied.

This reform is firmly focussed on protecting the safety and well-being of the community.

Therefore, the paramount consideration of the Supreme Court in determining whether to make an ESO is the safety of the community. In addition, the Supreme Court is empowered to make an ESO against a high risk offender who poses an appreciable risk to the safety of the community if not supervised under the ESO.

Under the Bill, the Attorney-General may apply to the Supreme Court for an ESO with respect to certain high risk offenders.

A high risk offender is:

a person who has been convicted (whether before or after the commencement of the new legislation) of 'serious sexual offence' (referred to as a 'serious sexual offender') and who was sentenced to a term of imprisonment in respect of the 'serious sexual offence'; or

a 'serious sexual offender' who is serving a sentence of imprisonment in respect of any of the following offences;

an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935 (SA) (the 'CLC Act'), being acts of gross indecency or possession of child pornography;

an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006 (SA) (the 'CSOR Act'), being failure to comply with reporting obligations, furnishing false or misleading information when reporting, applying for or engaging in child-related work and breaching requirements with respect to wearing a tracking device;

an offence under section 99I of the Summary Procedure Act 1921 (SA) (the 'SP Act'), being a breach of a paedophile restraining order; or

an offence prescribed by the regulations;

a person who has been convicted (whether before or after the commencement of the new legislation) of a 'serious offence of violence' (referred to as a 'serious violent offender') and who was sentenced to a term of imprisonment in respect of the 'serious offence of violence';

a person who is serving a sentence of imprisonment in respect of an offence of contravening or failing to comply with an ESO or an interim ESO; or

a person who is the subject of an ESO.

As noted above, a high risk offender is defined to include a person who has been convicted and imprisoned for a 'serious sexual offence'.

Under the Bill, the term 'serious sexual offence' has the same meaning as in section 33(1) of the Criminal Law (Sentencing) Act 1988 (SA) (the 'Sentencing Act').

These sections cover the offences of rape, unlawful sexual intercourse, indecent assault, acts of gross indecency, abduction, procuring sexual intercourse, production or dissemination of child pornography, procuring a child to commit indecent act, sexual servitude, deceptive recruitment for commercial sexual services, use of children in commercial sexual services and incest, but only where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least 5 years.

The term 'serious sexual offence' also includes an offence against a corresponding previous enactment substantially similar to an offence referred to above and an attempt to commit or an assault with intent to commit any of the offences referred to above, as well as an offence against the law of another State or a Territory corresponding to an offence referred to above.

Therefore, any person sentenced to a term of imprisonment for one of these 'serious sexual offences' may be the subject of an ESO.

In addition, once a person fulfils this criteria of having, at any time, served a term of imprisonment for a 'serious sexual offence' they may be the subject of an ESO if they are later sentenced to imprisonment for a lesser sexual offence that may not otherwise attract an ESO.

This provision will ensure that an offender who has previously committed a 'serious sexual offence' cannot avoid being the subject of an ESO simply because their subsequent offence (for which they were imprisoned) is a less serious sexual offence (such as possession of child pornography).

As noted above, a high risk offender is defined to include a person who has been convicted and imprisoned for a 'serious offence of violence'.

The term 'serious offence of violence' is given the same meaning as in section 83D(1) of the CLC Act and means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more where the conduct constituting the offence involved:

the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or

serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or

perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to above.

Once a person fulfil the criteria of being a high risk offender, the Attorney-General may make an application to the Supreme Court for an ESO to be made in respect of that person.

However, the application must be made whilst that high risk offender remains under supervision, for example, whilst the high risk offender is in prison or released into the community on parole.

In addition, the application can only be made within the last 12 months of the high risk offender's supervision.

Under the Bill, for a high risk offender who is serving a term of imprisonment (whether in prison or on release on home detention or parole) the application must be made within 12 months of:

if the offender is not serving a sentence of life imprisonment—the date on which the term, or terms, of imprisonment to which the offender was sentenced expire; and

if the offender is serving a sentence of life imprisonment—the date on which the sentence of imprisonment will be taken to have been wholly satisfied.

In relation to a high risk offender who is subject to an existing ESO, the application must be made within 12 months of the date on which the ESO is due to expire.

Under the Bill, an ESO, once made, would only commence operation once the offender is no longer imprisoned or supervised, for example:

if a full sentence has been served, the ESO would commence on release from prison; or

if an offender is granted release on parole, the ESO would commence on expiry of the parole period.

Under the Bill, the Supreme Court can make an interim ESO in cases where the offender's supervision or term of imprisonment would be due to expire prior to the determination of the ESO.

The Supreme Court, before making an ESO, must be satisfied that the offender is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under the ESO.

Before making an ESO, the Supreme Court must direct that at least 1 legally qualified medical practitioner (to be nominated by a prescribed authority for the purpose) examine the high risk offender and report to the Court on the results, including:

for a serious sexual offender, an assessment of the likelihood of the offender committing a further serious sexual offence; or

for a serious violent offender, an assessment of the likelihood of the offender committing a further serious offence of violence.

The paramount consideration of the Supreme Court in determining whether to make an ESO is the safety of the community.

In determining whether or not to make an ESO, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant:

the likelihood of the offender committing a further 'serious sexual offence' or 'serious offence of violence' if not supervised under an ESO;

the report of any medical practitioner furnished to the Court;

any report prepared by the Parole Board;

any report required by the Court (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);

any relevant evidence or representations that the offender may desire to put to the Court;

any treatment or rehabilitation program in which the offender has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;

in the case of an offender released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;

in the case of an offender subject to an existing ESO—the extent to which he or she has complied with the terms of that ESO;

in the case of an offender who is a registrable offender (within the meaning of the CSOR Act)—the extent to which he or she has complied with any obligations under the CSOR Act;

the circumstances and seriousness of any offence in respect of which the offender has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history; and

any remarks made by the sentencing court in passing sentence.

Under the Bill, the following conditions apply in relation to an ESO once made by the Court:

a condition that the person subject to the order not commit any offence;

a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977 (SA)) or any part of a firearm;

a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;

a condition that the person subject to the order:

be under the supervision of a community corrections officer;

obey the reasonable directions of the community corrections officer; and

submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;

any other condition that the Court thinks fit and specifies in the order; and

any condition imposed by the Parole Board.

The Bill provides the following as examples of the types of conditions that the Parole Board may include in an ESO:

requiring the person subject to the order to:

reside at a specified address;

undertake such activities and programs as determined from time to time by the Parole Board; or

be monitored by use of an electronic device;

providing that a community corrections officer or a police officer may, at any time:

visit the person subject to the order at the person's residential address; and

access any computer or related equipment that is at the person's residential address or in the possession of the person; and

for these purposes, enter the premises at that address; or

prohibiting or restricting the person subject to the order from:

associating or communicating with a specified person or persons of a specified class;

residing or being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class;

possessing a specified article or weapon, or articles or weapons of a specified class;

engaging in specified conduct, or conduct of a specified kind;

undertaking specified employment or employment of a specified kind;

applying for a change of name; or

engaging in any other conduct of a kind specified by the Parole Board.

Under the Bill, an ESO can only remain in force for a maximum of 5 years or such lesser period as the Supreme Court determines. The Parole Board will be able to vary and revoke conditions of ESOs set by the Parole Board and, for that purpose, under the Bill, a member of the Parole Board will have the power to summon a person who is the subject of an ESO to appear before the Parole Board. If the presiding member of the Parole Board reasonably suspects that a person who is the subject of an ESO may have breached a condition of the ESO, the presiding member may summon the person to appear before the Parole Board.

The Parole Board will also have the power to issue a warrant for the apprehension and detention of person who is summoned and fails to appear.

Any breach of the ESO constitutes an offence with a maximum penalty of 5 years imprisonment.

The aim of this new legislation is to provide a mechanism for extended supervision of those high risk offenders who pose a high level of risk to the safety of the community. Rather than forming part of a punishment for past conduct, this regime of extended supervision is designed to address future conduct.

This policy intent is reflected clearly in the Bill.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Object of Act

This clause provides that the object of this measure is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.

4—Interpretation

This clause contains definitions for the purposes of this measure, including definitions of extended supervision order, interim supervision order and supervision order; and serious sexual offender and serious violent offender.

5—Meaning of high risk offender

This clause provides that, for the purposes of this measure, a high risk offender is—

(a) a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or

(b) a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:

(i) an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;

(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;

(iii) an offence under section 99I of the Summary Procedure Act 1921;

(iv) an offence prescribed by the regulations for the purposes of this paragraph; or

(c) a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or

(d) a person who is serving a sentence of imprisonment any part of which is in respect of an offence of contravening or failure to comply with a supervision order (see clause 17); or

(e) a person who is subject to an extended supervision order.

6—Application of Act

The effect of this clause is to exclude the application of this measure in relation to a youth.

Part 2—Extended supervision orders

7—Proceedings

This clause sets out the manner in which the Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who falls within the definition of a high risk offender (the respondent). Any such application may only be made within 12 months of the relevant date of expiry for the respondent. Before determining whether to make an extended supervision order, the Court must direct that 1 or more legally qualified medical practitioners examine the respondent and report to the Court on the results of the examination. The paramount consideration of the Court in determining whether to make an extended supervision order must be the safety of the community, while other matters must also be taken into account. If the Court is satisfied that the respondent is a high risk offender and he or she poses an appreciable risk to the safety of the community if not supervised under the order, the Court may make such an order.

8—Parties

This clause provides that both the Attorney-General and the person to whom an application under this measure for an extended supervision order relates are parties to the application.

9—Interim supervision orders

Under this clause, the Supreme Court may make an interim supervision order if an application for an extended supervision order in relation to a high risk offender has been made and the Court is satisfied—

that the relevant expiry date for the respondent is likely to occur before the application is determined; and

that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.

An interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined.

10—Supervision orders—terms and conditions

This clause sets out the terms and conditions that apply in relation to each extended supervision order, including the following:

a condition that the person subject to the order not commit any offence;

a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;

a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;

a condition that the person subject to the order be under the supervision of a community corrections officer;

any other condition that the Court thinks fit and specifies in the order;

any condition imposed by the Parole Board under clause 11.

The conditions (other than any condition imposed by the Parole Board) apply in relation to an interim supervision order.

11—Conditions of extended supervision orders imposed by Parole Board

This clause sets out a non-exclusive list of examples of the sorts of conditions that the Parole Board may impose on an extended supervision order and provides a scheme whereby the Board can vary or revoke a condition imposed by the Board or impose further conditions on the order.

12—Duration of extended supervision order

This clause provides that an extended supervision order—

takes effect on the making of the order or on the relevant expiry date for the person subject to the order (whichever is the later); and

remains in force for a period of 5 years or such lesser period as is determined by the Supreme Court and specified in the order.

13—Variation and revocation of supervision order

This clause provides the Supreme Court with power, on application, to vary or revoke an extended supervision order or interim supervision order.

14—Consequential and ancillary orders

This clause allows the Supreme Court to make any order of a consequential or ancillary nature when making or varying an extended supervision order or interim supervision order.

Part 3—Miscellaneous

15—Court may obtain reports

This clause empowers the Supreme Court to seek assistance in determining an application under this measure by requiring the Parole Board, the chief executive of the Correctional Services Department, or any other body or person, to provide the Court with a report on any matter.

16—Inquiries by medical practitioners

This clause sets out the requirements to be followed by any medical practitioner examining the respondent to an application under this measure.

17—Offence to contravene or fail to comply with supervision order

This clause provides that a person subject to a supervision order who contravenes or fails to comply with a condition of the order is guilty of an offence, punishable by imprisonment for 5 years.

18—Apprehension etc of person subject to extended supervision order on Board warrant

This clause gives power to the Parole Board to bring a person subject to an extended supervision order before the Board if the Board suspects on reasonable grounds that the person may have breached a condition of the order. The clause makes further provision relating to proceedings before the Board for such a breach.

19—Appeals

This clause makes provision for appeals to the Full Court against a decision of the Supreme Court on an application for an extended supervision order under clause 7.

20—Regulations

The Governor may make such regulations as are contemplated by, or as are necessary or expedient for the purposes of, this measure.

Schedule 1—Related amendments

1—Amendment of section 64—Reports by Board

This proposed amendment relates to requirements under the measure that the Parole Board provide the Supreme Court with a report for the purpose of assisting the Court to determine whether or not to make an extended supervision order.

Debate adjourned on motion of Hon. J.M.A. Lensink.

At 17:53 the council adjourned until Wednesday 25 March 2015 at 14:15.