Part 3 Division 5 of the Sentencing Act 2017 (SA) allows the Supreme Court to make an order for the indeterminate or indefinite detention of a person who has been convicted in relation to one or more of the following offences [s 57]:
An order for indefinite detention may be sought
An order may only be made in respect of a youth if they are sentenced as an adult under the Young Offenders Act 1993 (SA) [Sentencing Act 2017 (SA) s 56].
Before making an order detaining a person in custody until further order, the Court must direct at least 2 legally qualified medical practitioners to independently examine the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, their sexual instincts [s 57(6)].
Once those reports have been received, the Court may make an order for indefinite detention if satisfied that the order is appropriate [s 57(7)]. The paramount consideration of the Court must be to protect the safety of the community [s 57(8)].
If an order under section 57 is made, the Supreme Court can only discharge the order [under s 58] if satisfied that the person
A person subject to indefinite detention is not eligible for parole, but can apply for release on licence. A release on licence cannot be granted unless the Supreme Court is satisfied [under s 59(1a)] that the person
On an application to discharge an indefinite detention order, or an application for release on licence, the Court must direct at least 2 legally qualified medical practitioners to independently examine the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, their sexual instincts [ss 58(2), 59(2)].
Applications under Part 3 Division 5 of the Sentencing Act 2017 (SA) are governed by Chapter 2 Part 5 of the Uniform Special Statutory Rules 2022 (SA).
See also Liability for further detention and supervision.
From 28 April 2025, a court sentencing a serious child sex offender to a term of imprisonment must order their indefinite detention [Sentencing Act 2017 (SA) Part 3 Division 2A].
A person who has previously been found guilty of, and served time in prison for, a prescribed child sex offence will be deemed to be a serious child sex offender upon being found guilty of a triggering child sex offence committed after their release from custody [s 48G].
A prescribed child sex offence is a sexual offence prescribed under s 48C committed against or in relation to a child. This includes State offences such as rape, compelled sexual manipulation, unlawful sexual intercourse, indecent assault, acts of gross indecency, production or dissemination of child exploitation material, an offence committed interstate that corresponds to one of these offences, and a number of Commonwealth offences.
A triggering child sex offence is a sexual offence prescribed under s 48D committed against or in relation to a child on or after 28 April 2025. Section 48D prescribes a number of State offences under the Criminal Law Consolidation Act 1935 (SA) as listed above.
A serious child sex offender is presumed, in the absence of evidence to the contrary, not to be capable of controlling, or willing to control, their sexual instincts [s 48B].
Sentencing process
A court sentencing a serious child sex offender for a triggering child sex offence must first determine whether a sentence of imprisonment is to be imposed and if so, whether it is to be wholly or partially served in custody [s 48I]. If the court decides to impose a sentence of imprisonment that will be served wholly or partially in custody, then the court must order indefinite detention [s 48I and Criminal Law Consolidation Act 1935 (SA) s 5AB(1)]. The sentence of imprisonment cannot be suspended or served on home detention.
The sentencing court must specify [s 48I(2)]:
The court may only avoid imposing the mandatory penalty of indefinite detention on a serious child sex offender if satisfied that exceptional circumstances exist and it is not appropriate for the offender to be sentenced to indefinite detention [s 48J]. The court may then sentence the offender in the usual way.
Release on licence and extinguishment
The Supreme Court alone retains discretion to release a serious child sex offender on licence once they have served the minimum period of custody fixed by the sentencing court [s 48K].
The Supreme Court must consider 2 reports prepared by medical practitioners and only release a serious child sex offender on licence if satisfied that:
Every serious child sex offender released on licence must wear a tracking device [s 48K(10)].
The Supreme Court may order that a sentence of indefinite detention be extinguished under s 48M. An offender may only apply for extinguishment after serving the minimum periods of imprisonment and release on licence fixed by the sentencing court without incident. The Supreme Court must consider 2 reports prepared by medical practitioners and be satisfied that the offender is either capable of controlling and willing to control their sexual instincts or no longer presents an appreciable risk to the safety of the community.
Youths
Part 3 Division 2A does not apply to a youth unless they are sentenced for a triggering child sex offence as an adult [s 48E].
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