Criminal Law Amendment Act 1945

This Act may be cited as the Criminal Law Amendment Act 1945.

In this Act—corrective services facility see the Corrective Services Act 2006, schedule 4.offence of a sexual nature includes any offence constituted wholly or partly by an act whereby the offender has exhibited a failure to exercise proper control over the offender’s sexual instincts and any offence in the circumstances associated with the committal whereof the offender has exhibited a failure to exercise such proper control over the offender’s sexual instincts, and includes an assault of a sexual nature.

This section shall be read as one with the Criminal Code and the Justices Act 1886.

A recognisance ordered to be entered into under orders in section 656 of the Criminal Code, by an offender who has been convicted of an offence of a sexual nature shall, if the court or, upon summary conviction, the justices so order, contain a condition that the offender be under the supervision of such person as may be named in the order or in any order from time to time made in amendment thereof (which order or orders are hereby authorised to be made by the court or the justices, as the case may be), during the period specified in the order and such other conditions for securing such supervision as may be specified in the order, (in this section called a probation order).

For the purposes of this section the Governor in Council may appoint persons as probation officers or children’s probation officers.

Except as otherwise permitted by this section, the person named in any probation order shall be selected from amongst the probation officers and, in the case of an offender under the age of 18 years, such person shall, in the absence of good reason to the contrary shown to the court or justices making the order, be selected from amongst the children’s probation officers.

It shall be lawful to name in a probation order as the person to undertake supervision in any special case, a person who is the agent of a voluntary society and any sums payable by way of salary, remuneration or otherwise for the performance of his or her duties under this section to such agent may be paid to the society.

In subsection (4)—voluntary society means a society carrying on mission work in connection with Magistrates Courts or any work of that nature in connection with the supervision and care of offenders.

It shall be the duty of a probation officer, subject to the direction of the court or justices—

to visit or receive reports from the person under supervision at such reasonable intervals as may be specified in the probation order or, subject thereto, as the probation officer may think fit;

to see that such person observes the conditions of the person’s recognisance;

to report to the court or justices as to such person’s behaviour;

to advise, assist, and befriend such person, and, when necessary, to endeavour to find such person suitable employment.

A probation officer shall be entitled to be paid such salary or to receive such remuneration for acting under a probation order as the Governor in Council directs, and may in either case be paid such out-of-pocket expenses as may be allowed by the Governor in Council.

In any case where a person has been found guilty of an offence of a sexual nature committed upon or in relation to a child under the age of 16 years—

if such person was found so guilty on indictment—the judge presiding at the trial of such person for that offence may at the judge’s discretion direct that 2 or more medical practitioners named by the judge (of whom 1 shall be a person registered under the Health Practitioner Regulation National Law as a specialist registrant in the specialty of psychiatry where the judge is of opinion that the services of such a person are reasonably available), inquire as to the mental condition of the offender, and in particular whether the offender’s mental condition is such that the offender is incapable of exercising proper control over the offender’s sexual instincts; or

if such person was found so guilty on summary conviction—the Magistrates Court before which the charge was heard, in addition to or before sentencing such person to any lawful punishment, may order that such person be brought before a judge of the Supreme Court with a view to such person being dealt with by such judge as prescribed by paragraph (a).

In the case of an order made under subsection (1)(b) before sentence, the Magistrates Court shall make such adjournments as are necessary and shall commit the convicted person to a corrective services facility or watch-house, until such person has been dealt with by a judge as hereinafter prescribed in this section and thereafter may (in the cases provided for in subsection (3B) or (6)(d) or in cases where the judge refuses to direct detention under either of the subsections), sentence such person to any lawful punishment.

The medical practitioners shall conduct the inquiry by means of personal examination and observation of the offender and by reference to the depositions and such other records relating to the offender as they think necessary, and shall give their report on oath to the judge.

If the medical practitioners report to the judge that the offender is incapable of exercising proper control over the offender’s sexual instincts the judge may, either in addition to or in lieu of imposing any other sentence where the offender was convicted on indictment, or in addition to the punishment (if any) imposed or to be imposed by the Magistrates Court where the offender was summarily convicted, declare that the offender is so incapable and direct that the offender be detained in an institution during Her Majesty’s pleasure.

However, the offender shall be entitled to cross-examine such medical practitioners in relation to and to call evidence in rebuttal of such report, and no such order shall be made unless the judge shall consider the matters reported to be proved.

When an offender whom a judge directs under subsection (3) to be detained was summarily convicted and the decision with respect to the lawful punishment to be awarded was reserved, such offender shall, unless the judge when so directing otherwise orders (which order is hereby authorised to be made by the judge) again be brought before the Magistrates Court in terms of the adjournment made by that court for sentence.

In any case where 2 medical practitioners, 1 of whom is registered under the Health Practitioner Regulation National Law as a specialist registrant in the specialty of psychiatry, report to the Attorney-General that any person who is serving a sentence of imprisonment imposed upon the person for an offence of a sexual nature (whether committed upon or in relation to a child under the age of 16 years or upon or in relation to a person over that age)—

is incapable of exercising proper control over the person’s sexual instincts; and

that such incapacity is capable of being cured by continued treatment; and

that for the purposes of such treatment it is desirable that such person be detained in an institution after the expiration of the person’s sentence of imprisonment;

the Attorney-General may cause an application to be made to a judge of the Supreme Court for a declaration and direction in respect of such person as prescribed by subsection (3).

Upon such application the medical practitioners shall report to the judge upon oath and the prisoner shall be entitled to cross-examine such medical practitioners in relation to and to call evidence in rebuttal of such report, and no such order shall be made unless the judge shall consider the matters reported to be proved.

Every offender or prisoner in respect of whom a direction is given under subsection (3) or (4)—

shall be detained in such institution as the Governor in Council directs, and until the Governor in Council gives a direction as to such institution, in a corrective services facility or watch-house; and

shall not be released until the Governor in Council is satisfied on the report of 2 medical practitioners that it is expedient to release the offender or prisoner.

If the medical practitioners report to the judge that the offender or, in the case of an application made under subsection (4) the judge is of the opinion that the prisoner, is not incapable of exercising proper control over his or her sexual instincts, but that his or her mental condition is subnormal to such a degree that he or she requires care, supervision and control in an institution either in his or her own interests or for the protection of others, and the judge after considering the report and any evidence submitted in rebuttal thereof is of opinion that the offender requires such care, supervision, and control, the judge may—

direct that the offender or prisoner be detained in an institution either for such period as the judge directs or during Her Majesty’s pleasure; or

where the offender was convicted on indictment—pass sentence on the offender and in addition direct as mentioned in paragraph (a); or

where the offender was summarily convicted and lawful punishment imposed by a Magistrates Court in addition direct as mentioned in paragraph (a); or

where the offender was summarily convicted and the decision with respect to the lawful punishment to be awarded was reserved—direct, as mentioned in paragraph (a), but in such case the prisoner shall, unless the judge when so directing otherwise orders (which order is hereby authorised to be made by the judge), again be brought before the Magistrates Court in terms of the adjournment made by that court for sentence.

Every offender or prisoner in respect of whom such a direction is given—

shall be detained in such institution as the Governor in Council directs, and, until the Governor in Council gives a direction as to such institution, in a corrective services facility or watch-house; and

where the detention ordered is during Her Majesty’s pleasure—shall not be released until the Governor in Council is satisfied, on the report of 2 medical practitioners, that the offender or prisoner is fit to be at liberty.

Where the judge orders detention during Her Majesty’s pleasure in addition to imprisonment or in the case of a prisoner the detention shall commence forthwith upon the expiration of the term of imprisonment.

In all other cases it shall commence forthwith upon the making of such order.

An offender or prisoner detained under this section, other than a detainee released under part 3A, must be examined at least once in every 3 months by the chief psychiatrist or by a medical practitioner appointed by the chief psychiatrist (who is hereby authorised to make such appointment) to conduct examinations under this subsection, either generally or of a particular offender or prisoner.

A medical practitioner making an examination under subsection (8) shall forthwith furnish a report of the examination to the chief psychiatrist.

An offender or prisoner detained in an institution pursuant to this section may be removed at any time to another institution by order of the chief executive of the department in which the Hospital and Health Boards Act 2011 is administered.

Moreover, the provisions of the Corrective Services Act 2006, section 68, shall, subject to all necessary modifications, apply to and in respect of any such offender or prisoner.

The provisions of this section may by order of a judge made on the application of a Crown law officer be applied in any or every respect to any offender who, before the passing of this section, was found guilty either on summary conviction or on indictment, of an offence of a sexual nature committed upon or in relation to a child under the age of 16 years and who, at the passing of this section, is undergoing, or subject to be sentenced to, imprisonment for such offence.

The Governor in Council may from time to time make all such regulations as appear necessary for giving effect to this section and particularly for giving effect to the provisions of this section as respects orders made under this section by Magistrates Courts.

For the purposes of the Criminal Code, chapter 67—

an offender or prisoner directed to be detained in an institution pursuant to this section shall be deemed to be a person convicted on indictment and such direction shall be deemed to be a sentence; and

a refusal by a judge of the Supreme Court to direct any offender or prisoner to be detained in an institution pursuant to this section shall, as respects the right of appeal had by the Attorney-General under chapter 67, be deemed to be a sentence.

In this section—chief psychiatrist see the Mental Health Act 2016, schedule 3.institution means—

a corrective services facility or watch-house; or

another institution prescribed under a regulation to be an institution for this section.

release means unconditional release and does not include release under part 3A.

In this part—corrective services officer means a person who holds an appointment as a corrective services officer under the Corrective Services Act 2006, section 275.detainee means an offender or prisoner who is detained in an institution during Her Majesty’s pleasure under a direction under section 18(3), (4) or (6).institution see section 18.parole order see the Corrective Services Act 2006, schedule 4.post-prison community based release order...Queensland board means the Parole Board Queensland established under the Corrective Services Act 2006.

The Corrective Services Act 2006, chapter 5 applies to a detainee, subject to this part, as if—

instead of being detained at Her Majesty’s pleasure, the detainee were a prisoner serving a term of life imprisonment (a notional term of life imprisonment) to whom the Corrective Services Act 2006, section 181(2)(d) applies, subject to subsection (2); and

for a detainee whose detention began under section 18(7) at the end of a term of imprisonment (an original term of imprisonment)—the detainee began to serve the notional term of life imprisonment when the detainee began to serve the original term of imprisonment; and

for a detainee whose detention began under section 18(7A) when the judge ordered the detention—the detainee began to serve the notional term of life imprisonment when the judge ordered the detention.

If a detainee committed the relevant offence before 1 July 1997, the Corrective Services Act 2006, chapter 5 applies to the detainee as if the period of 15 years mentioned in section 181(2)(d) of that Act were a period of 13 years.

In this section—relevant offence means—

for a detainee dealt with by a judge under section 18(1)—the offence mentioned in section 18(1) of which the detainee was found guilty; or

for a detainee about whom an application was made under section 18(4)—the offence mentioned in section 18(4) for which the detainee was serving a sentence of imprisonment.

A detainee may not apply for or be granted an exceptional circumstances parole order under the Corrective Services Act 2006, chapter 5.

If a detainee applies to the Queensland board for a parole order, the Queensland board must give the Attorney-General a copy of the application.

The Attorney-General may make written submissions to the Queensland board in relation to the application.

The Queensland board must consider any submissions by the Attorney-General when deciding whether to grant the application.

The Queensland board must not grant a detainee a parole order unless, in addition to any other matter of which the Queensland board must be satisfied under the Corrective Services Act 2006, the Queensland board is satisfied the detainee does not represent an unacceptable risk to the safety of others.

A parole order for a detainee may, in addition to any other conditions, contain conditions the Queensland board considers reasonable requiring the detainee to—

submit to medical, psychiatric or psychological treatment; or

report for drug testing to a corrective services officer.

To remove any doubt, it is declared that a detainee released under this part is a prisoner for the Corrective Services Act 2006, section 124(k).

This section applies to a detainee who has been released under this part, whether before or after the commencement of this section.

The detainee can not be released under section 18(5)(b) or (6A)(b).