DETENTION AND SUPERVISION

Under the Criminal Law (High Risk Offenders) Act 2015 (SA), serious sexual offenders and serious violent offenders may be liable to extended supervision and possibly detention after their term of imprisonment or parole period has expired.

The Act does not apply to youth (a person under the age of 18) [s 6], except where the person is a terror suspect, in which case the Act applies if they are aged 16 years or over [s 6(2)].

A serious offence of violence means a serious offence where the conduct constituting the offence involves:

  • (a) the death of, or serious harm to, a person or a risk of either of these; or
  • (b) serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
  • (c) perverting the course of justice in relation to any conduct that, if proved, would constitute either (a) or (b).[s 4]

A 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) an offence under section 48, 48A, 49, 50, 51, 56, 58, 59, 60, 63, 63B, 66, 67, 68 or 72 of the Criminal Law Consolidation Act 1935 (SA) (that is, sexual offences such as rape, indecent assault, gross indecency, production or dissemination of child exploitation material etc); similar offences to these and attempts to or an assault with intent to commit these offences;
  • (b) and offence against a corresponding previous enactment substantially similar to those offences listed above in (a)
  • (c) an offence against the law of another State or a Territory corresponding to an offence referred to in paragraph(a).[s 4]

A high risk offender is:

  • (a) a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
  • (b) a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:

(i) an offence under section 58 (acts of gross indecency) or 63A (possession of child exploitation material) of the Criminal Law Consolidation Act 1935 (SA);

(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006 (SA) (sections to do with reporting obligations, giving false information, child-related work, and tracking devices);

(iii) an offence under section 99I of the Criminal Procedure Act 1921 (SA) (breach of restraining orders);

(iv) an offence prescribed by the regulations for the purposes of this paragraph; or

  • (c) a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
  • (d) a person who is subject to an extended supervision order; or
  • (e) a terror suspect (as defined in section 5A of the Criminal Law (High Risk Offenders) Act 2015 (SA) who is serving a sentence of imprisonment.[s 5]

Extended Supervision Orders

The Attorney General can apply to the Supreme Court for an Extended Supervision Order (‘ESO’) to a person who is a high risk offender [s 7(1) Criminal Law (High Risk Offenders) Act 2015 (SA)].

The application has to be made within 12 months of the end of the person’s sentence (including on release or parole or home detention) or extended supervision order or after the sentence is wholly satisfied (for life imprisonment) [s 7(2)].

The Supreme Court has to consider at least one report from a medical practitioner including assessment on the person’s likelihood of re-offending with similar offences [s 7(3)]. The Supreme Court’s main determination must be based on the safety of the community [ss 7(5), 7(4)(b)].

Extended Supervision Orders can last for 5 years and further orders can be made following this time [see s 12].

The Court may make an ESO in relation to a person who was a youth at the time they committed their qualifying offending, but was sentenced as an adult to a period of imprisonment. The person must be an adult at the time the application for the ESO is brought [Attorney General (SA) v Woods-Pierce; Treloar v Attorney General (SA); Shi v Attorney General (SA) [2021] SASCA 112].

Conditions

Extended Supervision Orders include conditions that the person not commit further offences, not possess any firearms or ammunition, or offensive weapons [see ss 10(1)(a)-(c)]. A person under an order is under the supervision of a community corrections officer and has to submit to tests for gunshot residue as the officer requires [s 10(1)(d)]. Other conditions can be imposed by the Court and these conditions can also be varied by the Court [see ss 10(1)(e),10(3)-(4)].

The Parole Board can also impose conditions on people under extended supervision orders including in relation to requiring electronic monitoring, requiring the person to live at a certain address, undertake programs or activities, preventing communication with certain people, and various other conditions [see ss 10(2), 11].

Continuing Detention Orders

A Continuing Detention Order can be made by the Supreme Court if the supervision order is breached, and the Court considers that the person ‘poses an appreciable risk to the safety of the community if not detained in custody’‘ [s 18(2)].

The order is made ‘until the expiration of the supervision order, or for such lesser period as may be specified by the Court’ [s 18(2)(b)].

Bail

A person is not eligible for release on bail if the person is being detained under Part 3 of the Criminal Law (High Risk Offenders) Act 2015 (SA) [s 4(3) Bail Act 1985 (SA)].

 

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