Div 2ASentencing of serious child sex offenders

Division 2A—Sentencing of serious child sex offenders Subdivision 1—Preliminary 48A—Interpretation (1) In this Division— appropriate board—see subsection (3); child means a person under the age of 18 years; correctional facility means— (a) a correctional institution within the meaning of the Correctional Services Act 1982; or (b) a facility for the reception, detention, correction and training of youths who offend against the criminal law established under the Family and Community Services Act 1972 or the Youth Justice Administration Act 2016; prescribed child sex offence—see section 48C; senior police officer means a police officer of or above the rank of Inspector; serious child sex offender means a person taken to be a serious child sex offender under section 48G; triggering child sex offence—see section 48D. (2) For the purposes of this Division, a reference to a sentence of indeterminate duration will be taken to be a reference to the detention of a person in custody until the sentence of imprisonment is extinguished by order of the Supreme Court under section 48M. (3) For the purposes of this Division, the appropriate board, in relation to proceedings under this Division, means— (a) if the serious child sex offender the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre—the Training Centre Review Board; (b) in any other case—the Parole Board. (4) To avoid doubt, a reference in this Division to a period of imprisonment imposed on a person will be taken not to include a period of imprisonment that is suspended, or is to be served on home detention. 48B—Capable of controlling, and willing to control, sexual instincts (1) For the purposes of this Division, a serious child sex offender will, in the absence of evidence to the contrary, be presumed not to be capable of controlling, or willing to control, their sexual instincts. (2) For the purposes of this Division, a person is only to be regarded as being capable of controlling, and willing to control, their sexual instincts if the Supreme Court is satisfied that, if the person were given an opportunity to commit a triggering child sex offence, the person would be unlikely to commit the offence, or to otherwise fail to exercise appropriate control of their sexual instincts. (3) In proceedings under this or any other Act, the onus is on a serious child sex offender to prove that they are capable of controlling, and willing to control, their sexual instincts. 48C—Prescribed child sex offences For the purposes of this Division, the following offences (whether committed before or after the commencement of this section) are prescribed child sex offences: (a) an offence referred to in section 48D when committed against or in relation to a child; (b) an offence against a law previously in force in this State that corresponds to an offence referred to in section 48D when committed against or in relation to a child; (c) an offence against the law of another State or Territory that corresponds to an offence referred to in a preceding paragraph when committed against or in relation to a child; (d) an offence against a following provision of the Criminal Code of the Commonwealth when committed against or in relation to a child: (i) section 271.4; (ii) section 271.7; (iii) section 272.8; (iv) section 272.9; (v) section 272.10; (vi) section 272.11; (vii) section 272.12; (viii) section 272.13; (ix) section 272.14; (x) section 272.15; (xi) section 272.15A; (xii) section 272.18; (xiii) section 272.19; (xiv) section 272.20; (xv) section 273.6; (xvi) section 273.7; (xvii) section 471.16; (xviii) section 471.17; (xix) section 471.19; (xx) section 471.20; (xxi) section 471.22; (xxii) section 471.24; (xxiii) section 471.25; (xxiv) section 471.25A; (xxv) section 471.26; (xxvi) section 474.19; (xxvii) section 474.20; (xxviii) section 474.22; (xxix) section 474.22A; (xxx) section 474.23; (xxxi) section 474.23A; (xxxii) section 474.24A; (xxxiii) section 474.25A; (xxxiv) section 474.25B; (xxxv) section 474.25C (other than paragraph (a)(i)); (xxxvi) section 474.26; (xxxvii) section 474.27; (xxxviii) section 474.27A; or (xxxix) section 474.27AA; (e) an offence against a law of the Commonwealth previously in force that corresponds to an offence referred to in paragraph (d) when committed against or in relation to a child; or (f) a conspiracy to commit, or an attempt to commit, an offence referred to in any of the preceding paragraphs; or (g) an offence of aiding, abetting, counselling or procuring the commission of an offence referred to in any of the preceding paragraphs; or (h) an offence against the law of a foreign jurisdiction that corresponds to an offence referred to in any of the preceding paragraphs, but does not include an offence of a kind declared by the regulations to be excluded from the ambit of this definition. 48D—Triggering child sex offences For the purposes of this Division, an offence against the following provisions of the Criminal Law Consolidation Act 1935 (being an offence committed after the commencement of this section) is, when committed against or in relation to a child, a triggering child sex offence: (a) section 48; (b) section 48A; (c) section 49; (d) section 50; (e) section 51; (f) section 56; (g) section 58; (h) section 59, if the offender is sentenced on the basis that the offender committed the offence with the intent of having sexual intercourse with the child; (i) section 60; (j) section 63; (k) section 63AA; (l) section 63AB(1) or (5); (m) section 63B; (n) section 66; (o) section 67; (p) section 68; (q) section 72; (r) a conspiracy to commit, or an attempt to commit, an offence referred to in any of the preceding paragraphs; (s) an offence of aiding, abetting, counselling or procuring the commission of an offence referred to in any of the preceding paragraphs. 48E—Application of Division to youths This Division does not apply in relation to a youth unless the youth is sentenced for a triggering child sex offence as an adult. 48F—Disapplication of certain provisions of Act (1) Subject to subsection (2), the following provisions of this Act do not apply in relation to the sentencing of a serious child sex offender for a triggering child sex offence: (a) section 10; (b) section 29; (c) Part 2 Division 2 Subdivision 4; (d) Part 3 Division 2; (e) section 54; (f) Part 3 Division 6; (g) Part 3 Division 7; (h) Part 4. (2) Section 10 and Part 3 Division 6 continue to apply to a determination of a court under section 48I(1)(a). Subdivision 2—Serious child sex offenders 48G—Serious child sex offenders (1) A person is, by force of this subsection, taken to be a serious child sex offender if— (a) the person has been found guilty of, and a period of imprisonment imposed in relation to, a prescribed child sex offence; and (b) the person served all or part of the period of imprisonment in relation to the prescribed child sex offence in a correctional facility; and (c) the person is found guilty of a triggering child sex offence committed after the person is released from the correctional facility after serving the period of imprisonment. (2) A person ceases to be a serious child sex offender if a finding of guilt in respect of a prescribed child sex offence or a triggering child sex offence is quashed or set aside by a court (being an offence or offences without which the person would not be a serious child sex offender). 48H—Effect of spent convictions (1) The fact that a prescribed child sex offence or a triggering child sex offence in respect of which a person becomes a serious child sex offender becomes spent does not affect the status of the offence in determining whether a person is a serious child sex offender. (2) For the purposes of this section, an offence becomes spent if, under a law in any jurisdiction, the offender is permitted to not disclose the fact that they were convicted or found guilty of the offence.