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Liability for further detention and supervision

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

High Risk Offenders

According to s 5 of the Act, 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
  • (ca) a terror suspect who is serving a sentence of imprisonment; or
  • (cb) a person who is serving a sentence of imprisonment in relation to an offence against s 241 of the Criminal Law Consolidation Act 1935 (SA) (impeding investigation or assisting an offender) where the offence committed by the principal offender was a serious offence of violence or serious sexual offence; or
  • (d) a person who is subject to an extended supervision order.

A serious sexual offender means a person convicted of a serious sexual offence [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 [s 4]:

  • (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);
  • (b) an offence against a corresponding previous enactment substantially similar to those offences listed above in (a)
  • (c) an attempt to commit or an assault with intent to commit any of the offences referred to above in (a)
  • (d) an offence against the law of another State or Territory corresponding to an offence referred to in paragraph (a).

A serious violent offender means a person convicted of a serious offence of violence [s 4].

A serious offence of violence means a serious offence where the conduct constituting the offence involves [s 4; Criminal Law Consolidation Act 1935 (SA) s 83D(1)]:

  • (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).

A terror suspect is defined in s 5A as a person who:

  • (a) is, or has previously been, charged with a terrorist offence; or
  • (b) has been convicted of a terrorist offence; or
  • (c) is the subject of a terrorism notification under s 74B of the Police Act 1998 (SA); or
  • (d) is, or has previously been, the subject of a control order under Part 5.3 of the Commonwealth Criminal Code.

Terrorist offence is defined in s 4 to include a number of Commonwealth offences. Further terrorist offences are also prescribed under the Criminal Law (High Risk Offenders) Regulations 2015 (SA).

Youths

The Criminal Law (High Risk Offenders) Act 2015 (SA) does not apply to a youth (a person under the age of 18), unless they are a terror suspect aged 16 years or over [s 6]. However, 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].

Extended Supervision Orders

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

Proceedings are governed by the Criminal Law (High Risk Offenders) Act 2015 (SA), the Criminal Law (High Risk Offenders) Regulations 2015 (SA) and Chapter 3 Part 5 of the Uniform Special Statutory Rules 2022 (SA).

The application must be made within 12 months of the end of the offender's sentence (including on release on parole or home detention) or existing ESO or after the sentence is wholly satisfied (for life imprisonment) [ss 4, 7(2)].

The Supreme Court must consider at least 1 report from a prescribed health professional which includes an assessment of the person’s likelihood of re-offending with similar offences [s 7(3)].

The Court may make an ESO if satisfied that the high risk offender poses an appreciable risk to the safety of the community if not supervised under the order [s 7(4)(b)]. When considering whether or not to make an ESO, the Court’s paramount consideration must be the safety of the community [s 7(5)].

ESOs can remain in force for up to 5 years and a further order may be made following a further application from the Attorney-General [see s 12].

Interim Supervision Orders

The Court may make an Interim Supervision Order (ISO) if the Attorney-General has applied for an ESO and it is likely that the offender's sentence or existing ESO will expire before the application has been determined [s 9]. The Court must be satisfied that the matters in the application would, if proved, justify making an ESO [s 9(1)(b)]. An ISO will remain in force until the application for the ESO is determined [s 9(2)].

Conditions

ESOs and ISOs include conditions that the offender not commit further offences or possess any firearms, ammunition or offensive weapons [see ss 10(1)(a)-(c)]. The offender will be under the supervision of a community corrections officer and must submit to tests for gunshot residue as required [s 10(1)(d)]. Other conditions can be imposed by the Court and these conditions can also be varied by the Court [see s 10(1)(e), (3)-(4)].

The Parole Board can also impose conditions such as electronic monitoring, a requirement to live at a certain address, a requirement to undertake programs or activities, and a restriction on communicating with certain people [see ss 10(2), 11].

Continuing Detention Orders

A Continuing Detention Order may 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 ESO or for a lesser period 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) [Bail Act 1985 (SA) s 4(3)].

See also Indeterminate detention.

Liability for further detention and supervision  :  Last Revised: Mon Mar 4th 2024
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.