CRIMINAL LAW AMENDMENT ACT 1945 - SECT 18
Detention of persons incapable of controlling sexual instincts
CRIMINAL LAW AMENDMENT ACT 1945 - SECT 18
Detention of persons incapable of controlling sexual instincts
18 Detention of persons incapable of controlling sexual instincts
(1) In any case where a person has been found guilty of an
offence of a sexual nature committed upon or in relation to a child under the
age of 16 years—
(a) if such person was found so guilty on indictment—the
judge presiding at the trial of such person for that offence may at the
judge’s discretion direct that 2 or more medical practitioners named by the
judge (of whom 1 shall be a person registered under the Health Practitioner
Regulation National Law as a specialist registrant in the specialty of
psychiatry where the judge is of opinion that the services of such a person
are reasonably available), inquire as to the mental condition of the offender,
and in particular whether the offender’s mental condition is such that the
offender is incapable of exercising proper control over the offender’s
sexual instincts; or
(b) if such person was found so guilty on summary
conviction—the Magistrates Court before which the charge was heard, in
addition to or before sentencing such person to any lawful punishment, may
order that such person be brought before a judge of the Supreme Court with a
view to such person being dealt with by such judge as prescribed by paragraph
(a) .
(1A) In the case of an order made under subsection (1) (b) before
sentence, the Magistrates Court shall make such adjournments as are necessary
and shall commit the convicted person to a corrective services facility or
watch-house, until such person has been dealt with by a judge as hereinafter
prescribed in this section and thereafter may (in the cases provided for in
subsection (3B) or (6) (d) or in cases where the judge refuses to direct
detention under either of the subsections), sentence such person to any lawful
punishment.
(2) The medical practitioners shall conduct the inquiry by means
of personal examination and observation of the offender and by reference to
the depositions and such other records relating to the offender as they think
necessary, and shall give their report on oath to the judge.
(3) If the
medical practitioners report to the judge that the offender is incapable of
exercising proper control over the offender’s sexual instincts the judge
may, either in addition to or in lieu of imposing any other sentence where the
offender was convicted on indictment, or in addition to the punishment (if
any) imposed or to be imposed by the Magistrates Court where the offender was
summarily convicted, declare that the offender is so incapable and direct that
the offender be detained in an institution during Her Majesty’s pleasure.
(3A) However, the offender shall be entitled to cross-examine such medical
practitioners in relation to and to call evidence in rebuttal of such report,
and no such order shall be made unless the judge shall consider the matters
reported to be proved.
(3B) When an offender whom a judge directs under
subsection (3) to be detained was summarily convicted and the decision with
respect to the lawful punishment to be awarded was reserved, such offender
shall, unless the judge when so directing otherwise orders (which order is
hereby authorised to be made by the judge) again be brought before the
Magistrates Court in terms of the adjournment made by that court for sentence.
(4) In any case where 2 medical practitioners, 1 of whom is registered under
the Health Practitioner Regulation National Law as a specialist registrant in
the specialty of psychiatry, report to the Attorney-General that any person
who is serving a sentence of imprisonment imposed upon the person for an
offence of a sexual nature (whether committed upon or in relation to a child
under the age of 16 years or upon or in relation to a person over that age)—
(a) is incapable of exercising proper control over the person’s sexual
instincts; and
(b) that such incapacity is capable of being cured by
continued treatment; and
(c) that for the purposes of such treatment it is
desirable that such person be detained in an institution after the expiration
of the person’s sentence of imprisonment;
the Attorney-General may cause an
application to be made to a judge of the Supreme Court for a declaration and
direction in respect of such person as prescribed by subsection (3) .
(4A)
Upon such application the medical practitioners shall report to the judge upon
oath and the prisoner shall be entitled to cross-examine such medical
practitioners in relation to and to call evidence in rebuttal of such report,
and no such order shall be made unless the judge shall consider the matters
reported to be proved.
(5) Every offender or prisoner in respect of whom a
direction is given under subsection (3) or (4) —
(a) shall be detained in
such institution as the Governor in Council directs, and until the Governor in
Council gives a direction as to such institution, in a
corrective services facility or watch-house; and
(b) shall not be released
until the Governor in Council is satisfied on the report of 2 medical
practitioners that it is expedient to release the offender or prisoner.
(6)
If the medical practitioners report to the judge that the offender or, in the
case of an application made under subsection (4) the judge is of the opinion
that the prisoner, is not incapable of exercising proper control over his or
her sexual instincts, but that his or her mental condition is subnormal to
such a degree that he or she requires care, supervision and control in an
institution either in his or her own interests or for the protection of
others, and the judge after considering the report and any evidence submitted
in rebuttal thereof is of opinion that the offender requires such care,
supervision, and control, the judge may—
(a) direct that the offender or
prisoner be detained in an institution either for such period as the judge
directs or during Her Majesty’s pleasure; or
(b) where the offender was
convicted on indictment—pass sentence on the offender and in addition direct
as mentioned in paragraph (a) ; or
(c) where the offender was summarily
convicted and lawful punishment imposed by a Magistrates Court in addition
direct as mentioned in paragraph (a) ; or
(d) where the offender was
summarily convicted and the decision with respect to the lawful punishment to
be awarded was reserved—direct, as mentioned in paragraph (a) , but in such
case the prisoner shall, unless the judge when so directing otherwise orders
(which order is hereby authorised to be made by the judge), again be brought
before the Magistrates Court in terms of the adjournment made by that court
for sentence.
(6A) Every offender or prisoner in respect of whom such a
direction is given—
(a) shall be detained in such institution as the
Governor in Council directs, and, until the Governor in Council gives a
direction as to such institution, in a corrective services facility or
watch-house; and
(b) where the detention ordered is during Her Majesty’s
pleasure—shall not be released until the Governor in Council is satisfied,
on the report of 2 medical practitioners, that the offender or prisoner is fit
to be at liberty.
(7) Where the judge orders detention during Her Majesty’s
pleasure in addition to imprisonment or in the case of a prisoner the
detention shall commence forthwith upon the expiration of the term of
imprisonment.
(7A) In all other cases it shall commence forthwith upon the
making of such order.
(8) An offender or prisoner detained under this
section, other than a detaineereleased under part 3A , must be examined at
least once in every 3 months by the chief psychiatrist or by a medical
practitioner appointed by the chief psychiatrist (who is hereby authorised to
make such appointment) to conduct examinations under this subsection, either
generally or of a particular offender or prisoner.
(8A) A medical
practitioner making an examination under subsection (8) shall forthwith
furnish a report of the examination to the chief psychiatrist.
(9) An
offender or prisoner detained in an institution pursuant to this section may
be removed at any time to another institution by order of the chief executive
of the department in which the Hospital and Health Boards Act 2011is
administered.
(9A) Moreover, the provisions of the
Corrective Services Act 2006, section 68 , shall, subject to all necessary
modifications, apply to and in respect of any such offender or prisoner.
(11)
The provisions of this section may by order of a judge made on the application
of a Crown law officer be applied in any or every respect to any offender who,
before the passing of this section, was found guilty either on summary
conviction or on indictment, of an offence of a sexual nature committed upon
or in relation to a child under the age of 16 years and who, at the passing of
this section, is undergoing, or subject to be sentenced to, imprisonment for
such offence.
(12) The Governor in Council may from time to time make all
such regulations as appear necessary for giving effect to this section and
particularly for giving effect to the provisions of this section as respects
orders made under this section by Magistrates Courts.
(13) For the purposes
of the Criminal Code , chapter 67 —
(a) an offender or prisoner directed to
be detained in an institution pursuant to this section shall be deemed to be a
person convicted on indictment and such direction shall be deemed to be a
sentence; and
(b) a refusal by a judge of the Supreme Court to direct any
offender or prisoner to be detained in an institution pursuant to this section
shall, as respects the right of appeal had by the Attorney-General under
chapter 67 , be deemed to be a sentence.