South Australian Consolidated Acts South Australian Consolidated Acts23—Offenders incapable of controlling, or unwilling to control, sexual
instincts
(1) In this
section—
"institution" means—
(a) a
prison; and
(b) a
place declared by the Governor by proclamation to be a place in which persons
may be detained under this section; and
(c) in
relation to a youth, includes a training centre;
"person to whom this section applies" means—
(a) a
person convicted by the Supreme Court of a relevant offence; or
(b) a
person remanded by the District Court or the Magistrates Court under
subsection (2) to be dealt with by the Supreme Court under this section;
or
(c) a
person who is the subject of an application by the Attorney-General under
subsection (2a);
"relevant offence" means—
(a) an
offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of
the Criminal Law Consolidation Act 1935 ;
(b) an
offence under section 23 of the Summary Offences Act 1953 ;
(c) any
other offence where the evidence indicates that the defendant may be incapable
of controlling, or unwilling to control, his or her sexual instincts;
"unwilling"—a person to whom this section applies will be regarded as
unwilling to control sexual instincts if there is a significant risk that the
person would, given an opportunity to commit a relevant offence, fail to
exercise appropriate control of his or her sexual instincts.
(2) If, in proceedings
before the District Court or Magistrates Court, a person is convicted of a
relevant offence and—
(a) the
court is of the opinion that the defendant should be dealt with under this
section; or
(b) the
prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the
convicted person, in custody or on bail, to appear before the Supreme Court to
be dealt with under this section.
(2a) If a person has
been convicted of a relevant offence, the Attorney-General may, while the
person remains in prison serving a sentence of imprisonment, apply to the
Supreme Court to have the person dealt with under this section.
(2b) The
Attorney-General may make an application under subsection (2a) in respect
of a person serving a sentence of imprisonment whether or not an application
to the Supreme Court to have the person dealt with under this section has
previously been made (but, if a previous application has been made, a further
application cannot be made more than 12 months before the person is
eligible to apply for release on parole).
(3) The Supreme Court
will direct at least 2 legally qualified medical practitioners nominated by
the Court to inquire into the mental condition of a
person to whom this section applies and report to the Court on whether the
person is incapable of controlling, or unwilling to control, his or her sexual
instincts.
(4) For the purpose of
an inquiry under subsection (3), each medical practitioner—
(a) must
carry out an independent personal examination of the person; and
(b) may
have access to any evidence before the court by which the person was
convicted; and
(c) may
obtain the assistance of a psychologist, social worker, community
corrections officer or any other person.
(5) The Court may
order that a person to whom this section applies be detained in custody until
further order if—
(a) the
Court, after considering the medical practitioners' reports and any relevant
evidence or representations that the person may desire to put to the Court, is
satisfied that the order is appropriate; or
(b) the
person refuses to cooperate with an inquiry or examination under this section
and the Court, after considering any relevant evidence and representations
that the person may desire to put to the Court, is satisfied that the order is
appropriate.
(6) If a
person to whom this section applies has not been sentenced for a
relevant offence, the Supreme Court will deal with the question of sentence at
the same time as it deals with the question whether an order is to be made
under this section and, if the Court decides to make such an order, the order
may be made in addition to, or instead of, a sentence of imprisonment.
(7) If the detention
is in addition to a sentence of imprisonment, the detention will commence on
the expiration of the term of imprisonment, or of all terms of imprisonment
that the person is liable to serve.
(8) A person detained
in custody under this section will be detained—
(a) if
the defendant is under 18 years of age—in such institution (not being a
prison) as the Minister for Family and Community Services from to time
directs;
(b) in
any other case—in such institution as the Minister for Correctional
Services from time to time directs.
(9) The progress and
circumstances of a person subject to an order under this section (whether in
custody or not) must be reviewed at least once in each period of six months
by—
(a) in
the case of a person detained in, or released on licence from, a training
centre—the Training Centre Review Board;
(b) in
any other case—the Parole Board.
(10) The results of a
review under subsection (9) must be embodied in a written report, a copy
of which must be furnished to the person the subject of the report and—
(a) in
the case of a report of the Training Centre Review Board—to the Minister
for Family and Community Services;
(b) in
the case of a report of the Parole Board—to the Minister for
Correctional Services.
(11) Subject to this
Act, a person will not be released from detention under this section until the
Supreme Court, on application by the Director of Public Prosecutions or the
person, discharges the order for detention.
(12) The Supreme Court
may not discharge an order for detention under this section unless—
(a) it
has first obtained and considered the report of at least two legally qualified
medical practitioners each of whom has independently examined the person; and
(b)
having taken into account both the interests of the person and of the
community, it is of the opinion that the order for detention should be
discharged.