Subdiv 5Effect of supervening imprisonment on Division 3A order

Subdivision 5—Effect of supervening imprisonment on Division 3A order 269NH—Effect of supervening imprisonment on Division 3A order (1) If a person who has been released on licence under this Division commits an offence while subject to the licence and is sentenced to imprisonment for the offence, the Division 3A order is suspended for the period the person is in prison serving the term of imprisonment. (2) In determining when the term of a Division 3A order comes to an end, the period of a suspension under subsection (1) is not to be taken into account. Division 4—Disposition of persons declared to be liable to supervision under this Division Subdivision 1—Principle on which court is to act 269NI—Principle on which court is to act (1) The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general). (2) The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum. Subdivision 2—Making, variation and revocation of supervision orders 269O—Supervision orders (1) The court by which a defendant is declared to be liable to supervision under this Subdivision may— (a) release the defendant unconditionally; or (b) make an order (a supervision order)— (i) committing the defendant to detention under this Subdivision; or (ii) releasing the defendant on licence on the following conditions: (A) the conditions imposed by subsection (1a); (B) any other condition decided by the court and specified in the licence. (1aa) Without limiting the generality of subsection (1)(b)(ii)(B), release on licence under a supervision order may, for example, be subject to— (b) a condition that the defendant undergo assessment or treatment (or both) relating to the defendant's mental condition; or (c) a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982; or (d) any other condition that the court thinks fit. (1a) Subject to this Act, every licence under subsection (1)(b)(ii) is subject to the following conditions: (a) a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm; (b) a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or body specified by the court. (1b) A court may only vary or revoke the conditions imposed by subsection (1a) if the defendant satisfies the court, by evidence given on oath, that— (b) the possession of a firearm, ammunition or part of a firearm by the defendant does not represent an undue risk to the safety of the public. (2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established1. (3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses. 1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment. 269OA—Court may direct defendant to surrender firearm etc (1) The court by which a defendant is declared to be liable to supervision under this Subdivision may, in relation to a supervision order that is subject to the condition imposed by section 269O(1a)(a), direct the defendant to immediately surrender at a police station specified by the court any firearm, ammunition or part of a firearm owned or possessed by the defendant. (2) No criminal liability attaches to a person to the extent that he or she is complying with a direction under this section. (3) The Commissioner of Police must deal with any surrendered firearm, ammunition or part of a firearm in accordance with the scheme set out in the regulations. (4) No compensation is payable by the Crown or any other person in respect of the exercise of a function or power under this section. (5) The regulations may provide for the payment, recovery or waiver of fees in respect of this section. 269P—Variation or revocation of supervision order (1) At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate, the Commissioner for Victims' Rights or another person with a proper interest in the matter, vary or revoke a supervision order. (1a) On an application under subsection (1), the court may do 1 or more of the following: (a) confirm the present terms of the supervision order; (b) vary the terms of the order; (c) revoke the order and make in substitution for the order any other order that the court might have made under this Subdivision in the first instance; (2) If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application. 269Q—Report on mental condition of defendant (1) If a defendant is declared to be liable to supervision under this Subdivision, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing— (a) a diagnosis and prognosis of the condition; and (b) a suggested treatment plan for managing the defendant's condition. (2) If a supervision order is made against the defendant, the Minister must arrange to have prepared and submitted to the court, at intervals of not more than 12 months during the limiting term, a report containing— (a) a statement of any treatment that the defendant has undergone since the last report; and (b) any changes to the prognosis of the defendant's condition and the treatment plan for managing the condition. 269R—Reports and statements to be provided to court (1) For the purpose of assisting the court to determine proceedings under this Subdivision, the Crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of— (a) the next of kin of the defendant; and (b) the victim (if any) of the defendant's conduct; and (c) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim. (2) A report is not, however, required under subsection (1) if the purpose of the proceeding is— (a) to determine whether a defendant who has been released on licence should be detained or subjected to a more rigorous form of supervision; or (b) to vary, in minor respects, the conditions on which a defendant is released on licence. (3) If a court is fixing a limiting term in proceedings under this Subdivision relating to an alleged indictable offence or prescribed summary offence, a person who has suffered injury, loss or damage resulting from the defendant's conduct may furnish the court with a statement of a kind referred to in section 14 of the Sentencing Act 2017 (a victim impact statement), as if the defendant had been convicted of the offence and the court was determining sentence (and the court must deal with the statement in all respects as if it were a statement furnished under that section). (4) However, the court need not comply with section 14(4) and (5) of the Sentencing Act 2017 if the court is satisfied that— (a) the defendant is incapable of understanding the victim impact statement; or (b) having regard to the nature of the defendant's mental impairment, it would be inappropriate for the defendant to be present. (5) If a court is fixing a limiting term in proceedings under this Subdivision, the Crown or the Commissioner for Victim's Rights may furnish the court with a statement of a kind referred to in section 15 of the Sentencing Act 2017 (a neighbourhood impact statement or a social impact statement) as if the court were determining sentence for an offence (and the court must deal with the statement in all respects as if it were a statement furnished under that section). prescribed summary offence has the same meaning as in section 14 of the Sentencing Act 2017. 269T—Matters to which court is to have regard (1) In deciding proceedings under this Subdivision, the court should have regard to— (a) the nature of the defendant's mental impairment; and (b) whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and (c) whether there are adequate resources available for the treatment and support of the defendant in the community; and (d) whether the defendant is likely to comply with the conditions of a licence; and (e) other matters that the court thinks relevant. (2) The court cannot release a defendant under this Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court— (a) has considered a report (an expert report) prepared by a psychiatrist or other appropriate expert who has personally examined the defendant, on— (i) the mental condition of the defendant; and (ii) the possible effects of the proposed action on the behaviour of the defendant; and (b) has considered the report most recently submitted to the court by the Minister under this Subdivision; and (ba) is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and (c) has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; and (d) is satisfied that— (i) the defendant's next of kin; and (ii) the victim (if any) of the defendant's conduct; and (iii) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim, have been given reasonable notice of the proceedings. (2a) The court may, if it considers it necessary for the purpose of assisting the court to decide proceedings under this Subdivision, require further additional expert reports to be provided to the court. (3) Notice need not be given under subsection (2)(d) to a person whose whereabouts have not, after reasonable inquiry, been ascertained. 269U—Revision of supervision orders (1) If a person who has been released on licence under this Subdivision contravenes or is likely to contravene a condition of the licence, the court by which the supervision order was made may, on application by the Crown (which may be made, in a case of urgency, by telephone), review the supervision order. (1a) On an application for a review being made, the court may make an interim order in such terms as the court thinks appropriate in the circumstances, including an order that the person be detained in a specified place for a specified period pending the determination of the review. (2) After allowing the Crown and the person subject to the order a reasonable opportunity to be heard on the application for review, the court may do 1 or more of the following: (a) confirm the present terms of the supervision order; (b) amend the order so that it ceases to provide for release on licence and provides instead for detention; (c) amend the order by varying the conditions of the licence; (3) When an application for review of a supervision order is made, the court may issue a warrant to have the person subject to the order arrested and brought before the court and may, if appropriate, make orders for detention of that person until the application is determined. Subdivision 3—Continuing supervision orders 269UA—Application for continuing supervision (1) If a defendant is declared to be liable to supervision under Subdivision 2, whether before or after the commencement of this section, the Crown may, while the defendant remains liable to supervision, apply to the Supreme Court to have the defendant declared to be liable to supervision under a continuing supervision order. (2) An application cannot be made under subsection (1) more than 12 months before the end of the limiting term fixed in respect of the relevant supervision order (and the limiting term will be taken to continue until the application is determined by the Court). (3) The Court must give the defendant at least 14 days written notice of the date on which it intends to conduct the proceedings to determine the application. (4) The Court must, before determining an application under this section, direct that 1 or more legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the defendant and report to the Court on the mental condition of the defendant, including— (a) a diagnosis and prognosis of the condition; and (b) a suggested treatment plan for managing the defendant's condition. (5) Each of the following persons is entitled to appear and be heard in proceedings under this section and must be afforded a reasonable opportunity to call and give evidence, to examine or cross‑examine witnesses, and to make submissions to the Court: (a) the defendant (personally or by counsel); (b) the Director of Public Prosecutions; (c) the Commissioner for Victims' Rights; (d) with the permission of the Court—any other person with a proper interest in the matter. (6) The Court may also take the following matters into consideration when determining an application under this section: (a) any relevant remarks made by the court by which the defendant was declared to be liable to supervision under Subdivision 2; (b) the behaviour of the defendant while under supervision; (c) any treatment, care and rehabilitation of the defendant while under supervision; (d) any reports tendered, and submissions made, to the Court under this section; (e) the likelihood of the defendant committing an offence of a violent nature should the defendant no longer be liable to supervision; (f) the character, antecedents, age, means and physical and mental condition of the defendant; (g) the probable circumstances of the defendant should the defendant no longer be liable to supervision; (h) any other matters that the Court thinks are relevant. (7) If the Court is satisfied, on the balance of probabilities, that the defendant to whom the application relates could, if unsupervised, pose a serious risk to the safety of the community or a member of the community, the Court must declare that, on the expiry of the supervision order under Subdivision 2, the defendant is liable to continuing supervision under this Subdivision. 269UB—Continuing supervision orders (1) If, under section 269UA, the Supreme Court declares a defendant to be liable to continuing supervision, the Court may make an order (a continuing supervision order)— (a) committing the defendant to detention under this Subdivision; or (b) releasing the defendant on licence. (2) If a continuing supervision order is made releasing the defendant on licence, the licence is subject to the following conditions: (a) the conditions imposed by subsection (3); (b) any other condition decided by the Court and specified in the licence. (3) Subject to this Act, every licence under this Subdivision is subject to the following conditions: (a) a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm; (b) a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or body specified by the Court. (4) Without limiting the generality of subsection (2)(b), release on licence under a continuing supervision order may, for example, be subject to— (b) a condition that the defendant undergo assessment or treatment (or both) relating to the defendant's mental condition; or (c) a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982; or (d) any other condition that the Court thinks fit. (5) The Court may only vary or revoke the conditions imposed by subsection (3) if the defendant satisfies the Court, by evidence given on oath, that— (b) the possession of a firearm, ammunition or part of a firearm by the defendant does not represent an undue risk to the safety of the public. (6) A continuing supervision order remains in force against the defendant until the order is revoked by the Court. 269UC—Variation or revocation of continuing supervision order (1) At any time after a continuing supervision order has been made in respect of a defendant, the Supreme Court may, on the application of the Crown, the defendant, the Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke the order. (2) If the Court refuses an application by or on behalf of a defendant for variation or revocation of a continuing supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for 12 months or such greater or lesser period as the Court may direct on refusing the application. 269UD—Appeal (1) An appeal lies to the Full Court against a decision by the Supreme Court— (a) to make a declaration and order under this Subdivision; or (b) not to make a declaration and order under this Subdivision. (2) An appeal under this section may be instituted by the Crown or by the defendant. (3) Subject to a contrary order of the Full Court, an appeal cannot be commenced after 10 days from the date of the decision against which the appeal lies. (4) On an appeal, the Full Court— (a) may— (i) confirm or annul the decision subject to appeal; or (ii) remit the decision subject to appeal to the Supreme Court for further consideration or reconsideration; and (b) may make consequential or ancillary orders. Subdivision 4—Administrative detention for defendant released on licence under this Division 269UE—Administrative detention for defendant released on licence under this Division (1) If a defendant who has been released on licence under a supervision order or a continuing supervision order contravenes or is likely to contravene a condition of the licence, the prescribed authority may issue an order (an administrative detention order) that the defendant be detained in a specified place for a specified period (which must not exceed 14 days). (2) An administrative detention order must— (a) be directed to the Commissioner of Police and police officers generally; and (b) be in writing in the form approved by the Minister. (3) A person in respect of whom an administrative detention order has been issued who is taken into the care and control of a police officer under this Subdivision must be given a copy of the order as soon as practicable. (4) The progress and circumstances of a person detained under an administrative detention order must be reviewed as soon as reasonably practicable after the person is so detained— (a) to determine whether an application should be made to the court for a review of the supervision order or continuing supervision order to which the person is subject; and (b) for any other purpose as the prescribed authority thinks fit in the circumstances. (5) Despite subsection (1), a person who has been detained under an administrative detention order cannot be detained under another such order unless a period of at least 14 days has elapsed since the expiry of the previous administrative detention order. 269UF—Powers of police officers relating to persons in respect of whom an administrative detention order has been issued (1) This section applies to a person in respect of whom an administrative detention order has been issued under section 269UE. (2) A police officer may, subject to this section, exercise the following powers in relation to a person to whom this section applies: (a) the police officer may take the person into the officer's care and control; (b) the police officer may transport the person from place to place; (c) the police officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances; (d) the police officer may enter and remain in a place where the officer reasonably suspects the person may be found; (e) the police officer may use reasonable force to break into a place when that is reasonably required in order to take the person into the officer's care and control; (f) the police officer may search the person's clothing or possessions and take possession of anything in the person's possession that the person may use to cause harm to the person's self or others or property. (3) A police officer who takes the person into the officer's care and control must, as soon as practicable, transport the person, or arrange for the person to be transported by some other police officer, in accordance with the administrative detention order. (4) The powers conferred by this section continue to be exercisable as reasonably required for the purpose of enabling or facilitating the medical examination or treatment of the person. (5) A search of a person must be carried out expeditiously and in a manner that avoids, as far as reasonably practicable, causing the person any humiliation or offence. (6) Anything taken into the possession of a police officer under this section may be held for as long as is necessary for reasons of safety, but must otherwise be returned to the person from whom it was taken or dealt with according to law. Subdivision 5—Custody, supervision and care 269V—Custody, supervision and care (1) If a defendant is committed to detention under this Division, the defendant is in the custody of the Minister and the Minister may give directions for the custody, supervision and care of the defendant the Minister considers appropriate. (2) The Minister may— (a) place the defendant under the custody, supervision and care of another; and (b) if there is no practicable alternative—direct that a defendant be kept in custody in a prison. (3) Supervisory responsibilities arising from conditions on which a person is released on licence are to be divided between the Parole Board and the Minister in the following way: (a) the supervisory responsibilities are to be exercised by the Minister insofar as they relate to treating or monitoring the mental condition of the person; and (b) the supervisory responsibilities are in all other respects to be exercised by the Parole Board. (4) The Minister or the Parole Board (as the case may be) may delegate a power or function under this section— (a) to a person for the time being performing particular duties or holding or acting in a particular position; or (b) to any other person or body that, in the delegator's opinion, is competent to perform or exercise the relevant functions or powers. (5) A delegation under subsection (4)— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the ability of the delegator to act in any matter; and (d) is revocable at will by the delegator.