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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-03-21 Daily Xml
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Bills

Sentencing (Serious Child Sex Offenders) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:28): Obtained leave and introduced a bill for an act to amend the Sentencing Act 2017, and to make related amendments to the Correctional Services Act 1982 and the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:29): I move:

That this bill be now read a second time.

The bill I introduce today is the Sentencing (Serious Child Sex Offenders) Amendment Bill 2024. Prior to the state election, the government committed to pass new laws to provide for indefinite detention so that serious child sex offenders will stay in prison until they can control their sexual instincts and will face a lifetime of electronic monitoring when they re-enter the community.

The bill amends the Sentencing Act 2017 to create a new sentencing scheme providing for the indefinite detention of serious child sex offenders. The bill provides that a person will automatically be taken to be a serious child sex offender when they are found guilty of a triggering child sex offence if they have previously been convicted of a serious child sex offence (including serious commonwealth child sex offences and child sex offences committed in other jurisdictions) for which they have served time in prison.

When sentencing a serious child sex offender for a triggering offence, the court must first consider whether a custodial sentence of imprisonment will be imposed for the offence. If so, there will not be any need for the prosecutor or the Attorney-General to apply to the Supreme Court to seek an order of indefinite detention. Instead, the bill provides that the court is required to impose a mandatory sentence of indefinite detention. This means a serious child sex offender will not be able to be released from prison into the community without further authorisation by the Supreme Court via a process designed to ensure that the safety of the community is the paramount consideration.

A serious child sex offender will be able to apply to the Supreme Court to be released on licence with mandatory electronic monitoring and any other conditions the Parole Board (or the Training Centre Review Board) considers necessary, only after serving a minimum period of imprisonment. This minimum period is four-fifths of the sentence that would have been imposed if the offender were not a serious child sex offender subject to the mandatory indefinite detention regime.

To be released on licence, the offender will have to satisfy the Supreme Court that they are capable of controlling and willing to control their sexual instincts, or that they no longer present an appreciable risk of safety to the community. This requires an assessment by two appropriately qualified medical professionals to make these types of assessments, and they will be appointed by the court. This is the same test that currently applies for both release on licence or discharge of detention order under the existing scheme applicable to offenders who have been found to be incapable of controlling or unwilling to control their sexual instincts, contained in part 3, division 5 of the Sentencing Act (the existing scheme).

As noted, the bill imposes a mandatory requirement for electronic monitoring if an offender is released into the community on licence. That condition is not able to be varied or waived under any circumstances. The Parole Board will be empowered to cancel the release on licence and return the offender to custody if it is satisfied that the offender has contravened or is likely to contravene a condition of their licence.

A serious child sex offender will be able to apply to have the sentence of indeterminate duration (including the requirement for electronic monitoring) brought to an end only after having served a minimum period of imprisonment in prison, as well as having spent a further period of at least five years being supervised and monitored on licence in the community.

To have their sentence of indeterminate duration brought to an end, the offender will again have to satisfy the Supreme Court that they are capable of controlling and willing to control their sexual instincts, or that they no longer present an appreciable risk of safety to the community, following assessment by two appropriately qualified medical professionals appointed by the court. It should be noted that because the test for extinguishment of the sentence involves consideration of the offender's capability to control or willingness to control their sexual instincts without licence conditions, it will be a harder test to satisfy than the test for release on licence.

Finally, it is recognised that, even when dealing with child sex offenders, there may be situations where the imposition of a sentence of indefinite detention would result in an unjust outcome. Accordingly, the bill provides that if the court is satisfied that there are exceptional circumstances, and in all the circumstances it is not appropriate for the person to be subject to indefinite detention, the court will be able to revert to sentencing the offender to an appropriate sentence in the usual way. Exceptional circumstances may emerge from consideration of the circumstances of the offending, the circumstances personal to the offender or some combination of both.

The concept of exceptional circumstances is not a new one, that is, our courts have extensive experience in applying the exceptional circumstances test as part of their sentencing exercises in other contexts such as when setting non-parole periods that are shorter than the mandatory minimum pursuant to section 48 of the Sentencing Act, in the context of sentencing serious repeat offenders pursuant to section 54 of the Sentencing Act, and in the context of prohibition against suspended sentences for certain classes of offenders pursuant to sections 51 and 96 of the Sentencing Act.

The Malinauskas Labor government is committed to protecting the South Australian community from the scourge of child sex offenders. One of our very first pieces of legislation was to lift maximum penalties to a range of child sex offences. In the past two years, we have also closed loopholes in child sex offence laws including tightening Carly's Law to ensure those who target children online are subject to the full force of the law.

Just this week, we have passed laws to prevent registered child sex offenders and those accused of registrable child sex offences from working with children. This bill is our latest initiative and an integral one to keep the children of South Australia safe from those who would do them harm. I commend the bill to the chamber and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

3—Amendment of section 5—Interpretation

This clause inserts definitions of key terms used in the measure into section 5 of the principal Act.

4—Amendment of section 26—Sentencing for multiple offences

This clause makes a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

5—Insertion of Part 3 Division 2A

This clause inserts new Part 3 Division 2A into the principal Act as follows:

Division 2A—Sentencing of serious child sex offenders

Subdivision 1—Preliminary

48A—Interpretation

This clause contains definitions of key terms used in the new Division.

48B—Capable of controlling, and willing to control, sexual instincts

This clause deems serious child sex offenders to not be capable of controlling, and willing to control, their sexual instincts unless evidence to the contrary exists. The clause shifts the onus of proving that a serious child sex offenders is capable of controlling, and willing to control, their sexual instincts onto the serious child sex offender.

48C—Prescribed child sex offences

This clause lists the offences that constitute prescribed child sex offences.

48D—Triggering child sex offences

This clause lists the offences that constitute triggering child sex offences.

48E—Application of Division to youths

This clause clarifies the application of the Division to youths.

48F—Disapplication of certain provisions of Act

This clause disapplies the specified provisions of the principal Act to the sentencing of a serious child sex offender for a triggering child sex offence.

Subdivision 2—Serious child sex offenders

48G—Serious child sex offenders

This clause defines who is a serious child sex offender, and when a person ceases to be a serious child sex offender.

48H—Effect of spent convictions

This clause provides that the scheme set out in this new Division is not affected by a conviction of a serious child sex offender becoming spent.

Subdivision 3—Sentencing of serious child sex offenders for triggering child sex offences

48I—Sentencing of serious child sex offenders for triggering child sex offences

This clause sets out the scheme by which serious child sex offenders who are convicted of a triggering child sex offence are to be sentenced.

Subdivision 4—Court may declare that Subdivision 3 does not apply to certain serious child sex offenders

48J—Court may declare that Subdivision 3 does not apply to certain serious child sex offenders

This clause provides that the sentencing court may make a declaration that new Subdivision 3 does not apply in relation to the sentencing of certain serious child sex offenders in the circumstances referred to in the clause.

Subdivision 5—Release of serious child sex offenders on licence

48K—Release on licence

This clause provides that a serious child sex offender who is serving a sentence of indeterminate duration may be released on licence in the circumstances referred to in the clause. Before they can be released, however, the offender must serve the minimum period of imprisonment fixed under new section 48I(2)(d). The clause also sets out the conditions that attach to the release, including the wearing of electronic monitoring at all times.

48L—Arrest and detention of serious child sex offender released on licence without warrant

This clause provides that police officers may, on the authorisation of a senior officer, arrest a serious child sex offender who has been released on licence if the officer suspects on reasonable grounds that the serious child sex offender has breached a condition of the release on licence.

Subdivision 6—Extinguishment of sentence

48M—Extinguishment of sentence

This clause sets out the scheme whereby a serious child sex offender or the DPP may apply to the Supreme Court for extinguishment of a sentence of indeterminate duration. The clause sets out the matters of which the court must be satisfied, or have regard to, before extinguishing a sentence under the section.

Subdivision 7—Miscellaneous

42N—Inquiries by medical practitioners

This clause makes provision sets out the way in which medical practitioners are to carry out inquiries into the mental condition of a person under the Division.

6—Amendment of section 55—Declaration that youth is recidivist young offender

This clause makes a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

7—Amendment of section 57—Offenders incapable of controlling, or unwilling to control, sexual instincts

This clause makes a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

8—Insertion of section 59A

This clause inserts new section 59A into the principal Act, allowing police officers to arrest a person released on licence under section 59 if the police officer suspects on reasonable grounds that the person has breached a condition of the release on licence. This aligns with new section 48L.

Schedule 1—Related amendments

Part 1—Amendment of Correctional Services Act 1982

1—Amendment of section 64—Reports by Board

This clause amends section 64 of the Correctional Services Act 1982 to make a consequential amendment resulting from the enactment of new Part 3 Division 2A by this measure.

Part 2—Amendment of Criminal Law Consolidation Act 1935

2—Insertion of section 5AB

This clause inserts new section 5AB into the Criminal Law Consolidation Act 1935 to provide the penalties (including a sentence of indeterminate duration) for the commission of a triggering child sex offence by a serious child sex offender.

Debate adjourned on motion of Hon. L.A. Henderson.

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