Div 5Offenders incapable of controlling, or unwilling to control, sexual instincts

Division 5—Offenders incapable of controlling, or unwilling to control, sexual instincts 56—Application of this Division (1) Subject to subsection (2), this Division does not apply in relation to a youth. (2) The Supreme Court may exercise its powers under section 57 in relation to a youth who is sentenced as an adult under the Young Offenders Act 1993. 57—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 (3); 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; or (b) an offence under section 23 of the Summary Offences Act 1953; or (c) an offence under a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or (d) any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, the defendant's sexual instincts; or (e) an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006; 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 the person's 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) Subsection (2) does not apply in relation to a serious child sex offender being sentenced for a triggering child sex offence. (3) 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. (4) The Attorney‑General may make an application under subsection (3) 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). (5) The Supreme Court may, if the Attorney‑General has made an application under subsection (3) in respect of a person who is in prison serving a sentence of imprisonment, make an interim order that the person is to remain in custody pending determination by the Supreme Court as to whether to make an order under this section that the person be detained in custody until further order. (6) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) 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, the person's sexual instincts. (7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate. (8) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general). (9) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order: (a) the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court; (c) any report required by the Court under section 61; (d) any other matter that the Court thinks relevant. (10) A copy of a report provided to the Supreme Court under subsection (9) must be given to each party to the proceedings or to counsel for those parties. (11) If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given— (a) paramount consideration to protecting the safety of the community (whether as individuals or in general); and (b) consideration to any relevant evidence and representations that the person may desire to put to the Court. (12) 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. (13) 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. (14) 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 Youth Justice from time to time directs; (b) in any other case—in such institution as the Minister for Correctional Services from time to time directs. (15) The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months— (a) if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or (b) in any other case—by the Parole Board, for the purpose of making a recommendation about whether the person is— (c) if the person is in custody—suitable for release on licence under section 59; or (d) if the person has been authorised to be released, or has been released, on licence under section 59—suitable to be so released. (16) The results of a review under subsection (15), including the recommendation of the relevant Board, must be embodied in a written report, a copy of which must be provided to the person the subject of the report, the Attorney‑General and— (a) in the case of a report of the Training Centre Review Board—the Minister for Youth Justice; (b) in the case of a report of the Parole Board—the Minister for Correctional Services. 58—Discharge of detention order under section 57 (1) Subject to this Act, a person subject to an order for detention under section 57 will not be released from detention under that section until the Supreme Court, on application by the DPP or the person, discharges the order for detention. (1a) An order for detention under section 57 cannot be discharged unless the person subject to the order satisfies the Supreme Court that— (b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity. (2) The Supreme Court must, before determining an application under this section for the discharge of an order for detention under section 57, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person subject to the order and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts. (3) The paramount consideration of the Supreme Court when determining an application for the discharge of an order for detention under section 57 must be to protect the safety of the community (whether as individuals or in general). (4) The Supreme Court must also take the following matters into consideration when determining an application for the discharge of an order for detention under section 57: (a) the reports of the medical practitioners (as directed and nominated under subsection (2)) provided to the Court; (c) a report provided to the Court by the Training Centre Review Board or Parole Board (as the case may be) in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including— (i) any opinion that the relevant Board may have about the effect the discharge of the order may have on the safety of the community; and (ii) a report as to the probable circumstances of the person if the order is discharged; and (iii) the recommendation of the relevant Board about whether the order should be discharged; (d) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court; (e) any other report required by the Court under section 61; (4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person subject to the order may spend in custody if the order is not discharged. (5) A copy of a report provided to the Supreme Court under subsection (4) must be given to each party to the proceedings or to counsel for those parties. (6) If the discharge of an order for detention would result in the immediate release of a person subject to the order from custody, the Supreme Court may order that the discharge is not to take effect for such time as it considers necessary for the purpose of enabling the person to undergo a suitable pre‑release program. 59—Release on licence (1) The Supreme Court may, on application by the DPP or the person, authorise the release on licence of a person detained in custody under this Division. (1a) A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that— (b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity. (2) The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts. (3) The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be to protect the safety of the community (whether as individuals or in general). (4) The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division: (a) the reports of the medical practitioners (as directed and nominated under subsection (2)) provided to the Court; (c) a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including— (i) any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and (ii) a report as to the probable circumstances of the person if the person is released on licence; and (iii) the recommendation of the appropriate board as to whether the person should be released on licence; (e) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court; (f) any other report required by the Court under section 61; (g) any other matter that the Court thinks relevant. (4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence. (5) A copy of any report provided to the Supreme Court under subsection (4) must be given to each party to the proceedings or to counsel for those parties. (6) On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court. (7) Subject to this Act, every release of a person on licence under this section is subject to the following conditions: (a) a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm; (b) a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the appropriate board. (8) Without limiting subsection (7), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982). (9) If the Supreme Court has refused a person's application for release on licence, the person may not further apply for release for a period of 6 months, or such lesser or greater period as the Court may have directed on refusing the application. (10) The appropriate board may— (a) on application by the DPP or the person, or on its own initiative, vary or revoke a condition of a licence or impose further conditions; or (b) on application by the DPP, or on its own initiative, cancel the release of a person on licence, if satisfied that— (i) in the case of a person released on licence on the ground referred to in subsection (1a)(b)—there is evidence suggesting that the person may now present an appreciable risk to the safety of the community (whether as individuals or in general); or (ii) in any case—the person has contravened, or is likely to contravene, a condition of the licence. (11) A board cannot exercise its powers under subsection (10) on its own initiative in relation to a person released on licence unless the person and the DPP have been afforded a reasonable opportunity to make submissions to the board on the matter, and the board has considered any submissions so made. (12) The appropriate board may only vary or revoke the conditions imposed by subsection (7) on the release of a person on licence if the board is satisfied that— (b) the possession of a firearm, ammunition or part of a firearm by the person does not represent an undue risk to the safety of the public. (13) For the purposes of proceedings under subsection (10), a member of the appropriate board may— (a) summon the person the subject of the proceedings to appear before the board; or (b) in the case of proceedings for cancellation of release— (i) with the concurrence of a second member of the board—issue a warrant for the apprehension and detention of the person pending determination of the proceedings; or (ii) apply to a magistrate for a warrant for the apprehension and detention of the person pending determination of the proceedings. (14) If a person who has been summoned to appear before the appropriate board fails to attend in compliance with the summons, the board may— (a) determine the proceedings in the person's absence; or (b) direct a member of the board to— (i) issue a warrant; or (ii) apply to a magistrate for a warrant, for the apprehension and detention of the person for the purpose of bringing the person before the board. (15) A member of the appropriate board may apply to a magistrate for a warrant for the apprehension and return to custody of a person whose release on licence has been cancelled by the board. (16) A magistrate must, on application under this section, issue a warrant for the apprehension and detention of a person or for the apprehension and return to custody of a person, as the case may require, unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant. (17) The appropriate board may, if it thinks good reason exists for doing so, cancel a warrant issued under this section at any time before its execution. (18) If a person who has been released on licence commits an offence while subject to that licence and is sentenced to imprisonment for the offence, the release on licence is, by virtue of this subsection, cancelled. (20) For the purposes of this section, the appropriate board, in relation to proceedings under this section, means— (a) if the person 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. 59A—Arrest and detention of person released on licence without warrant (1) A police officer may, on the authorisation of a senior police officer, without warrant, arrest a person released on licence under section 59 if the police officer suspects on reasonable grounds that the person has breached a condition of the release on licence. (2) If a person is arrested under subsection (1)— (a) the person must be taken to the nearest police station; and (b) within 12 hours of the arrest—the presiding member or deputy presiding member of the appropriate board (or, if neither of those members is available, a magistrate) must be notified of the arrest; and (c) as soon as is reasonably practicable after being so notified—the presiding member or deputy presiding member of the appropriate board, or the magistrate, (as the case requires) must, by order, direct that the person— (i) be detained in custody pending attendance before the appropriate board; or (ii) be released and summoned to attend before the appropriate board; or (iii) be released from custody. appropriate board has the same meaning as in section 59; senior police officer means a police officer of or above the rank of Inspector. 60—Appropriate board may direct person to surrender firearm etc (1) The appropriate board may, in relation to the release of a person on licence under section 59 that is subject to the condition imposed by section 59(7)(a), direct the person to immediately surrender at a police station specified by the appropriate board any firearm, ammunition or part of a firearm owned or possessed by the person. (2) A person who refuses or fails to comply with a direction under subsection (1) is guilty of an offence. Maximum penalty: $10 000 or imprisonment for 2 years. (3) No criminal liability attaches to a person to the extent that the person is complying with a direction under this section. (4) 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. (5) No compensation is payable by the Crown or any other person in respect of the exercise of a function or power under this section. (6) The regulations may provide for the payment, recovery or waiver of fees in respect of this section. appropriate board has the same meaning as in section 59. 61—Court may obtain reports (1) A court may, for the purpose of obtaining assistance in making a determination under this Division or Schedule 2, require the Parole Board, the Training Centre Review Board or any other body or person to provide the court with a report on any matter. (2) A copy of a report provided to a court under subsection (1) must be given to each party to the proceedings or to counsel for those parties. 62—Inquiries by medical practitioners If, for the purposes of this Division or Schedule 2, the Supreme Court directs that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority) inquire into the mental condition of a person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts, each medical practitioner so nominated— (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. 63—Parties Both the DPP and the person to whom an application under this Division or Schedule 2 relates are parties to the application. 64—Service on guardian If the person to whom an application under this Division or Schedule 2 relates is under 18 years of age, a copy of the application must be served on a guardian of the child, unless— (a) it is not practicable to do so; or (b) the whereabouts of all of the guardians of the child cannot, after reasonable inquiries, be ascertained. 65—Appeals (1) An appeal lies to the Court of Appeal against— (a) a decision of the Supreme Court on an application to discharge an order for detention under this Division; (b) a decision of the Supreme Court on an application to release a person on licence under this Division. (2) An appeal under this section may be instituted by the DPP or by the person to whom the particular decision relates. (3) Subject to a contrary order of the Court of Appeal, an appeal cannot be commenced after 10 days from the date of the decision against which the appeal lies. (4) On an appeal, the Court of Appeal may— (a) confirm, reverse or annul the decision subject to appeal; (b) make any order that it considers should have been made in the first instance; (c) make any consequential or ancillary orders. (5) Subject to subsection (6), if— (a) the Supreme Court decides— (i) to discharge an order for detention under this Division; or (ii) to release a person on licence under this Division; and (b) counsel appearing on behalf of the DPP gives immediate notice that an appeal against the decision will be instituted, the decision has no force or effect pending the outcome of the appeal. (6) If the DPP gives notice under subsection (5) of an appeal against a decision of the Supreme Court but then a person acting on behalf of the DPP subsequently files with the Supreme Court a notice that the DPP does not desire to proceed with the appeal, the decision will take effect. 66—Proclamations The Governor may, by proclamation, vary or revoke a proclamation under this Division. 67—Regulations The Governor may make regulations— (a) providing for the care, treatment, rights and duties of a person detained in custody under this Division in consequence of being found to be incapable of controlling the person's sexual instincts; (b) providing for the granting of periods of leave for a person so detained; (c) providing for any other related matter.