CRIMES ACT 1958 - SECT 464ZFAB DNA profile sample from registrable offenders under the Sex Offenders Registration Act 2004

CRIMES ACT 1958 - SECT 464ZFAB

    (1)     In this section—

S. 464ZFAB(1) def. of initial period inserted by No. 25/2017 s. 53(1).

"initial period" means the period of 3 years commencing on the day on which section 52 of the Sex Offenders Registration Amendment (Miscellaneous) Act 2017 comes into operation;

"registrable offender" has the same meaning as in section 3 of the Sex Offenders Registration Act 2004 .

S. 464ZFAB(2) amended by No. 3/2019 s. 61(2)(a).

    (2)     A police officer may, at any time, direct that a DNA profile sample be taken from a person if, at the time that the direction is given—

        (a)     the person is a registrable offender; and

S. 464ZFAB(2)(b) amended by No. 3/2019 s. 61(2)(b).

        (b)     the Chief Commissioner of Police does not have a sample from the person that may be retained indefinitely.

S. 464ZFAB(3) amended by No. 3/2019 s. 61(3).

    (3)     A senior police officer may serve, or may cause to be served, a notice on a person referred to in subsection (2) directing the person to attend at a police station specified in the notice to have the DNA profile sample taken within 28 days after service of the notice.

    (4)     A notice under subsection (3) must—

        (a)     state that if the person fails to comply with the notice, an application for a warrant to arrest the person may be made without further notice to the person; and

        (b)     state that the person may wish to seek legal advice as to the effect of the notice; and

        (c)     state the name, rank and telephone number of the senior police officer serving the notice or causing the notice to be served; and

        (d)     contain the prescribed information, if any.

    (5)     A notice under subsection (3) must be served by delivering a true copy of the notice to the person personally.

    (6)     Section 464ZFAA(6), (7) and (8) apply to a notice served under subsection (3) as if it were a notice served under that section.

S. 464ZFAB(7) amended by No. 3/2019 s. 61(4).

    (7)     If a DNA profile sample is taken from a person under this section, the sample taken and any related material and information may be retained indefinitely.

    (8)     Subsection (7) does not apply if, on appeal against conviction, the finding of guilt of the registrable offender in respect of an offence is quashed or set aside and, but for that offence, the person would not be a registrable offender.

S. 464ZFAB(9) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).

    (9)     Subject to subsection (10), a police officer may give a direction under subsection (2) to a registrable offender whose reporting obligations under the Sex Offenders Registration Act 2004 —

        (a)     have been suspended under Division 6 of Part 3 of that Act; or

        (b)     have been suspended under section 32(1)(b) of that Act; or

        (c)     have expired under section 34(1) of that Act—

only if a notice under subsection (3) has been served on the registrable offender.

S. 464ZFAB

(10) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).

    (10)     A registrable offender referred to in subsection (9) may refuse to have a DNA profile sample taken and to attend at a police station in compliance with a notice under subsection (3) if the registrable offender demonstrates to the reasonable satisfaction of the senior police officer referred to in subsection (3)—

        (a)     if the registrable offender was a registrable offender on the commencement of the initial period, that the registrable offender has been resident in Victoria for not less than 2 years and 6 months in aggregate during the initial period; or

        (b)     that the registrable offender has been resident in Victoria for a continuous period of 12 months at any time after the expiry of the initial period and was a registrable offender during the whole of that period of 12 months.

S. 464ZFAB

(11) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).

    (11)     A person serving a notice under subsection (3) on a registrable offender referred to in subsection (9) must inform the registrable offender, in a manner likely to be understood by the offender, of the following matters—

        (a)     that the offender may refuse to comply with the notice;

S. 464ZFAB

(11)(b) amended by No. 38/2022 s. 91(2).

        (b)     the grounds on which the offender may refuse to comply;

        (c)     that the offender may wish to seek legal advice as to the effect of the notice.

S. 464ZFAB

(12) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).

    (12)     A senior police officer referred to in subsection (10) must take into account any information provided by the registrable offender.

S. 464ZFAB

(13) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).

    (13)     Before a registrable offender referred to in subsection (9) has a DNA profile sample taken, a police officer must, in a manner likely to be understood by the offender—

        (a)     inform the offender of the grounds on which the offender may refuse to have the DNA profile sample taken; and

        (b)     ask the offender whether the offender wishes to refuse.

S. 464ZFAB

(14) inserted by No. 25/2017 s. 53(2) (as amended by No. 3/2019 s. 80).

    (14)     If a registrable offender does not have a knowledge of the English language that is sufficient to enable the person to understand the matters referred to in subsection (11) or (13), the person informing the offender must arrange for the presence of a competent interpreter and defer the giving of the information until the interpreter is present.

S. 464ZFAC inserted by No. 3/2019 s. 62.