Criminal Code Amendment (No. 2) Act 2000
CRIMINAL CODE AMENDMENT (N0. 2) ACT 2000

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BERMUDA
2000 : 23

CRIMINAL CODE AMENDMENT (N0. 2) ACT 2000

[Date of Assent 11 July 2000]

[Operative Date ]

WHEREAS it is expedient to amend the Criminal Code Act 1907
to make further provision with respect to sex offenders and violent
offenders:

Be it enacted by The Queen's Most Excellent Majesty, by and
with the advice and consent of the Senate and the House of Assembly of
Bermuda, and by the authority of the same, as follows:

Citation
1 This Act may be cited as the Criminal Code Amendment (No. 2)
Act 2000.

Amendment of Part XVIII of Criminal Code
2 Part XVIII of the Criminal Code Act 1907 (which relates to sexual
assaults) is amended by the addition of the following—

"Definitions
329D (1) In sections 329D to 329H—

"Minister" means the Minister responsible for public
safety;

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"offender" means a person convicted of a serious
personal injury offence;

"serious personal injury offence" means—

(a) a sexual offence; and

(b) any indictable offence, other than a sexual
offence, except treason, premeditated murder
or murder, involving—

(i) the use or attempted use of violence
against another person;

(ii) conduct endangering or likely to
endanger the life or safety of
another person or inflicting or likely
to inflict severe psychological
damage upon another person,

and for which the offender may be
sentenced to imprisonment for ten years or
more.

"sex offender" means a person who has been
convicted of a sexual offence;

"sexual offence" means any of the following—

(i) carnal knowledge of a girl under 14
(section 180);

(ii) carnal knowledge of a girl between 14
and 16 (section 181);

(iii) sexual exploitation of a young person
(section 182A);

(iv) sexual exploitation of a young person by
a person in a position of trust (section
182B);

(v) incest by a male person (section 191);

(vi) incest by a woman (section 192);

(vii) indecent acts in public or with intent to
offend (section 197);

(viii) indecent act involving children (section
198);

(ix) sexual assault (section 323);

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(x) sexual assault by a person with AIDS
etc. (section 324);

(xi) serious sexual assault (section 325);

(xii) aggravated sexual assault (section 326).

(2) The Minister may by order amend the list of sexual
offences set out in subsection (1) by addition, deletion or
variation of any offence.

(3) An order under subsection (2) shall be subject to
the affirmative resolution procedure.

(4) References to offences in subsection (1) include a
reference to an attempt to commit that offence.

(5) In the definition of "sexual offence" in subsection (1)
references to sections are to sections of the Criminal Code Act
1907.

Remand of offender for assessment
329E (1) Where an offender is convicted of a serious
personal injury offence, the court shall, before sentence is
imposed on the offender, remand the offender for a period not
exceeding 60 days to the custody of the Commissioner of
Prisons.

(2) The Commissioner of Prisons shall cause an
assessment to be conducted by a qualified professional to
determine if the offender constitutes a threat to the life, safety or
physical or mental well-being of any other person on the basis of
evidence establishing—

(a) in the case of a sex offender, that—

(i) the offender, by his conduct in any
sexual matter, including that involved in
the commission of the offence for which
he has been convicted, has shown a
failure to control his sexual impulses;
and

(ii) there is a likelihood of his causing
injury, pain or other evil to other
persons through failure in the future to
control such impulses; or

(b) in any other case, that—

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(i) the offender has demonstrated a pattern
of repetitive behaviour, of which the
offence for which he has been convicted
forms a part, showing a failure to
restrain his behaviour and a likelihood
of his causing death or injury to other
persons or inflicting severe psychological
damage on other persons, through
failure in the future to restrain his
behaviour; or

(ii) the offender has demonstrated
behaviour of such a brutal nature as to
compel the conclusion that his
behaviour in the future is unlikely to be
inhibited by normal standards of
behavioural restraint.

(3) The person charged with the conduct of an
assessment under subsection (2) shall report his findings and
recommendations for sentence to the court.

(4) The court, if on receipt of the report under
subsection (3) it is satisfied that—

(a) it would be appropriate to impose a sentence of
three years or more for the offence for which the
offender has been convicted; and

(b) there is a substantial risk the offender will
reoffend;

shall—

(c) impose a sentence for the offence for which the
offender has been convicted, which sentence
shall be imprisonment for not less than three
years; and

(d) order the offender to be supervised in the
community for such period not exceeding ten
years as may be specified in the order and
subject to such conditions as are so specified.

(5) The court shall not make an order under
subsection (4)(d) if the offender has been sentenced to life
imprisonment.

(6) If the court is not satisfied of the matters referred to
in subsection (4)(a) and (b), it shall impose any sentence it could

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otherwise impose for the offence for which the offender has been
convicted.

(7) Nothing in this section shall be construed to
derogate from section 71E (which relates to dangerous
offenders).

Supervision
329F (1) An offender who is required to be supervised by an
order under section 329E(4)(d) shall be supervised by a
probation officer or other person specified in the order.

(2) The period of supervision shall commence when the
offender has finished serving—

(a) the sentence for the offence for which the
offender has been convicted; and

(b) all other sentences for offences for which the
offender is convicted and for which sentence of a
term of imprisonment is imposed on the
offender, whether before or after the conviction
for the offence referred to in paragraph (a).

(3) A sentence imposed on an offender, other than a
sentence of imprisonment, shall be served concurrently with the
supervision order.

(4) An offender who is required to be supervised by an
order under section 329E(4)(d) or his supervisor may apply to
the court for an order reducing the period of supervision or
terminating it on the ground that the offender no longer presents
a substantial risk of reoffending.

(5) The onus of proving that ground is on the person
making the application and the standard of proof is that of the
balance of probabilities.

(6) No application under subsection (4) shall be heard
unless notice of an application has been given to the Director of
Public Prosecutions at the time the application is made.

(7) Where an offender commits an offence while under
supervision and the court imposes a sentence of imprisonment,
the period of supervision is suspended until the offender has
finished serving that sentence.

(8) An offender who—

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(a) is required to be supervised by an order made
under section 329E(4)(d); and

(b) without reasonable excuse, fails or refuses to
comply with that order or any condition
specified in the order,

is guilty of an indictable offence and is liable to imprisonment for
ten years.

(9) Before the expiration of a period of supervision
imposed under section 329E or under this subsection the court
shall, on receipt of a further assessment conducted by a
qualified professional as referred to in that section, review the
issue of supervision and may by order impose an additional
period of supervision for such period as may be specified in the
order and subject to such conditions as are so specified.

(10) An order made under subsection (9) shall be
deemed to have been made under section 329E(4)(d).

Notification

Notification requirements for sex offenders
329G (1) A person becomes subject to the notification
requirements of this section, if—

(a) after this section comes into force he is
convicted of a sexual offence; or

(b) at the time this section comes into force—

(i) he is serving a sentence of
imprisonment; or

(ii) he has been released on licence after
serving the whole or part of a sentence
of imprisonment,

in respect of a sexual offence.

(2) A person who is subject to the notification
requirements of this section shall continue to be so subject for a
period of ten years commencing on—

(a) the date of his conviction; or

(b) if later, the date of his release from prison,
whether released on licence or on the expiration
of his term of imprisonment.

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(3) A person who is subject to the notification
requirements of this section shall immediately upon his release
notify the police of the following information—

(a) his name, and, where he uses one or more other
names, each of those names; and

(b) his home address.

(4) A person who is subject to the notification
requirements of this section shall immediately upon—

(a) his using a name which has not been notified to
the police under subsection (3); or

(b) any change in his home address,

notify that name or that change of address to the police.

(5) Any notification under this section shall be
acknowledged in writing in such form as the Minister may direct.

(6) A person who—

(a) fails, without reasonable excuse, to comply with
the notification requirements set out in
subsection (3) or (4); or

(b) notifies to the police, in purported compliance
with those requirements, any information which
he knows to be false,

is guilty of an offence and is liable on summary conviction to a
fine of $3,000 or imprisonment for six months, or to both.

(7) A certificate issued by the registrar or clerk of the
court that a person has been convicted of a sexual offence and of
the date of conviction shall be conclusive evidence of those facts.

(8) A certificate of the Commissioner of Prisons that a
person was released from prison and the date of release shall be
conclusive evidence of those facts.

Public notification of information on sex offenders
329H (1) The Minister, having regard to—

(a) the need to protect the public, an affected group
of people or an individual; and

(b) the objective of effective management of sex
offenders,

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may establish a protocol governing the disclosure of information
in relation to sex offenders who are considered to present a risk
of significant harm to the health or safety of the public, an
affected group of people or an individual.

(2) The protocol may provide for the following
notification options—

(a) no notification;

(b) notification of a specified group of persons;

(c) notification of a specified individual;

(d) notification to the public.

(3) Notification may include such identifying
information (including a photograph of the sex offender) as the
Minister may determine.

(4) Before determining to give any notification in
accordance with the protocol in relation to a particular sex
offender the Minister shall consult with the Commissioner of
Police.".

Commencement
3 This Act comes into operation on such day as the Minister
responsible for public safety may appoint by notice published in the
Gazette.