Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Act 2013

Monday 9 December 2013 @ 9.32 a.m. | Crime

South Australia has recently assented the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Act 2013 (No. 77 of 2013). The Act amends the Criminal Law (Sentencing) Act 1988 (principal Act) to alter the current test for the discharge of an indeterminate sentence order and impose a new test for a release on licence that requires the Court to take into account the safety of the community as a paramount consideration. Additionally, the Act amends the test for the making of an indeterminate detention order. Once again, the Act will require the Court to take into account the safety of the community as the paramount consideration.

Under section 23 of the principal Act as it stood before amendment, if a person has been convicted of a relevant sexual offence, the Court may order a medical assessment of the person to ascertain whether they are capable of controlling their sexual instincts. On receipt of this report, the Court may order that the offender be detained in custody until further order – known as an indeterminate sentence. In granting this, the Court has to balance the interests of the person and the community.

However, the amendment to the Act now means that when exercising its right under section 23, the Court must take into account the safety of the community as the paramount consideration. Furthermore, the amendment provides for a scheme in which the Court may, on application from the Director of Public Prosecution, cancel or confirm the release on licence of a person subject to detention under section 23. This may contemplate a substantial number of proceedings which may be brought by the DPP potentially in respect of all persons already released on licence.

As stated in a submission paper by the SA Law Society:

"A licensee could potentially be returned to custody under this scheme regardless of whether or not they had been in breach of licence conditions. This consequence is brought about by the introduction of the new paramount consideration for the safety of the community test."

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