What it does
The Criminal Law Amendment Act 1945 creates special sentencing and detention regimes for offenders convicted of sexual offences, particularly those committed against children under 16 years. It operates in three distinct layers. Part 2 (section 17) establishes a probation order system for sexual offenders. Where a court orders a recognisance under section 656 of the Criminal Code for a person convicted of an offence of a sexual nature, the court may require the recognisance to include a condition that the offender be under the supervision of a named person during a specified period. The Governor in Council may appoint probation officers and children’s probation officers for this purpose. Probation officers have statutory duties to visit or receive reports from the supervised person, ensure compliance with recognisance conditions, report behaviour to the court, and advise, assist and befriend the person. The probation order concept is confined to Part 2.
Part 3 (section 18) provides for indeterminate detention of persons who have been found guilty of an offence of a sexual nature committed upon or in relation to a child under 16 years. On indictment, the presiding judge may at discretion direct two or more medical practitioners (one of whom must be a psychiatrist if reasonably available) to inquire into the offender’s mental condition and specifically whether the offender is incapable of exercising proper control over sexual instincts. On summary conviction, the Magistrates Court may order the person brought before a Supreme Court judge for the same inquiry. If the medical practitioners report that the offender is incapable of controlling sexual instincts, the judge may declare the offender so incapable and direct detention in an institution during Her Majesty’s pleasure. The offender has the right to cross-examine the medical practitioners and call rebuttal evidence. The judge must consider the matters reported to be proved before making an order. Section 18 also allows the Attorney-General, on receipt of a report from two medical practitioners (one a psychiatrist) concerning a prisoner serving a sentence for a sexual offence (against a child or any person), to apply for a declaration and direction for detention after the sentence expires, provided the incapacity is curable by continued treatment and detention is desirable for that treatment. Detention continues until the Governor in Council is satisfied on the report of two medical practitioners that it is expedient to release the offender. An alternative subnormal condition route in subsection (6) allows the judge to order fixed-term or pleasure detention where the offender is not incapable of control but has subnormal mental condition requiring care, supervision and control.