Criminal Law Amendment Act 1945

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;

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.