South Australian Numbered Acts South Australian Numbered Acts10—Insertion of section 32A and Part 3 Division 3
After section 32 insert:
32A—Mandatory minimum non-parole periods and proportionality
(1) If a mandatory
minimum non-parole period is prescribed in respect of an offence, the period
prescribed represents the non-parole period for an offence at the lower end of
the range of objective seriousness for offences to which the mandatory minimum
non-parole period applies.
(2) In fixing a
non-parole period in respect of an offence for which a mandatory minimum
non-parole period is prescribed, the court may—
(a) if
satisfied that a non-parole period that is longer than the prescribed period
is warranted because of any objective or subjective factors affecting the
relative seriousness of the offence, fix such longer non-parole period as it
thinks fit; or
(b) if
satisfied that special reasons exist for fixing a non-parole period that is
shorter than the prescribed period, fix such shorter non-parole period as it
thinks fit.
(3) In deciding
whether special reasons exist for the purposes of subsection (2)(b), the
court must have regard to the following matters and only those matters:
(a) the
offence was committed in circumstances in which the victim's conduct or
condition substantially mitigated the offender's conduct;
(b) if
the offender pleaded guilty to the charge of the offence—that fact and
the circumstances surrounding the plea;
(c) the
degree to which the offender has co-operated in the investigation or
prosecution of that or any other offence and the circumstances surrounding,
and likely consequences of, any such co-operation.
(4) This section
applies whether a mandatory minimum non-parole period is prescribed under this
Act or some other Act.
Division 3—Dangerous offenders
33—Interpretation
(1) In this
Division—
"serious sexual offence" means any of the following offences where the maximum
penalty prescribed for the offence is, or includes, imprisonment for at least
5 years:
(a)
—
(i)
an offence under section 48, 49, 56, 58, 59, 60, 63,
63B, 66, 67, 68, 72 or 74 of the Criminal Law Consolidation Act 1935 ; or
(ii)
an attempt to commit or an assault with intent to commit
any of those offences;
(b) an
offence against the law of another State or a Territory corresponding to an
offence referred to in paragraph (a).
(2) For the purposes
of this Division—
(a) an
offence will be taken to have been committed in "prescribed circumstances if,
in the opinion of the Attorney-General—
(i)
the offence was committed in the course of deliberately
and systematically inflicting severe pain on the victim; or
(ii)
there are reasonable grounds to believe that the offender
also committed a serious sexual offence against or in relation to the victim
of the offence in the course of, or as part of the events surrounding, the
commission of the offence (whether or not the offender was also convicted of
the serious sexual offence); and
(b) a
reference to an "offence of murder" includes—
(i)
an offence of conspiracy to murder; and
(ii)
an offence of aiding, abetting, counselling or procuring
the commission of murder.
(3) No proceeding for
judicial review or for a declaration, injunction, writ, order or other remedy
may be brought to challenge or question a decision of the Attorney-General
under subsection (2).
33A—Dangerous offenders
(1) If a person has
been convicted, whether before or after the commencement of this Division, of
an offence of murder and the offence was committed in prescribed
circumstances, the Attorney-General may, while the person remains in prison
serving a sentence of imprisonment, apply to the Supreme Court to have the
person declared to be a dangerous offender.
(2) An application
cannot be made under subsection (1) more than 12 months before the
person is eligible to apply for release on parole.
(3) The Court must
give the person at least 14 days written notice of the date on which it
intends to conduct the proceedings to determine the application.
(4) If the Court is of
the opinion that a report from the Parole Board may assist the Court in
determining an application under this section, the Court may direct the Board
to hold an inquiry and report to the Court.
(5) The Parole Board
may exercise such powers as are conferred on the Board under Part 6 of
the Correctional Services Act 1982 as are necessary or expedient for, or
incidental to, the purposes of an inquiry under subsection (4).
(6) 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
person (personally or by counsel);
(b) the
Director of Public Prosecutions;
(c) the
Commissioner for Victims' Rights.
(7) The paramount
consideration of the Court when determining an application under this section
must be to protect the safety of the community (whether as individuals or in
general).
(8) 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 in passing sentence;
(b) the
degree to which the person has shown contrition for the relevant offence;
(c) the
behaviour of the person while in prison;
(d) any
rehabilitation of the person while in prison;
(e) the
willingness of the person to co-operate with an inquiry (if any) by the Parole
Board under this section;
(f) any
reports tendered, and submissions made, to the Court under this section;
(g) the
likelihood of the person committing a serious sexual offence, an
offence of murder or some other serious offence of a violent nature should the
person be released from prison;
(h)
whether the non-parole period imposed by the court when sentencing the person
for the relevant offence was reduced as a consequence of the commencement of
the Statutes Amendment (Truth in Sentencing) Act 1994 ;
(i)
the character, antecedents, age, means and physical or
mental condition of the person;
(j) the
probable circumstances of the person after release from prison;
(k) any
other matters that the Court thinks are relevant.
(9) If the Court is
satisfied, on the balance of probabilities, that the release from prison of
the person to whom the application relates would involve a serious danger to
the community or a member of the community, the Court must—
(a)
declare the person to be a dangerous offender; and
(b)
order that the non-parole period fixed in respect of the sentence of
imprisonment for the murder be negated.
(10) A person who has
been declared to be a dangerous offender under this section—
(a) will
serve his or her sentence of imprisonment as if the fixing of a non-parole
period in respect of that sentence of imprisonment had been declined by order
of the court under section 32; and
(b) may
not make an application under that section for the fixing of a non-parole
period for at least 12 months after having been so declared.
33AB—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 Division; or
(b) not
to make a declaration and order under this Division.
(2) An appeal under
this section may be instituted by the Attorney-General or by the person to
whom the particular decision relates.
(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 may—
(a)
confirm or annul the decision subject to appeal;
(b)
remit the decision subject to appeal to the Supreme Court for further
consideration or reconsideration;
(c) make
consequential or ancillary orders.
33B—Division does not affect Governor's powers etc in relation to parole
Nothing in this Division has any effect on the powers and authorities
conferred on, or vested in, the Governor in relation to parole.