CRIMINAL LAW (SENTENCING) (CHARACTER EVIDENCE) AMENDMENT BILL

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:40): I rise to speak on the Criminal Law (Sentencing) (Character Evidence) Amendment Bill 2014. The opposition is of the view completely that this legislation is common sense and deserves some support. Our greatest concern in relation to the introduction of the bill is that it has taken 12 years for one of South Australia's highest profile cases to be dealt with, finally, in the Supreme Court, that being the last issue relating to the offence, namely, the appeal against sentence. There were some other ancillary matters relating to the case of R v Liddy which related to who was responsible for and had ownership of a set of guns, whether the property of the defendant in the Barossa Valley should be sold and various other ancillary matters relating to the cost of those proceedings.

We do not need to consider those today, but certainly, this is a very famous South Australian case, not the least of which is because the defendant had been a long serving member of the magistracy in South Australia, that there were multiple victims of child sexual abuse and molestation, and that there were multiple offences over a sustained period. It was a shocking case on all levels, not the least of which was the breach of trust by someone who was in a position of high standing in the community toward minors, children. It was the gravest act of abuse towards children by someone who was had one of the highest offices and stature within the community. It will long live in our memories.

It is that case that really, I think, is claimed to have sparked the attention of the government. Other jurisdictions, including in New South Wales, have been mindful of the ill in relation to our criminal law sentencing law that needed to be cured, namely, the person relying on good character in their antecedents. New South Wales considered this and their jurisdiction. They legislated to cure this ill some five years ago. It is concerning to note that the government seems to taken so long to act.

During the course of consultation on this matter—and we thank the government for ultimately providing the final briefing on it—it does appear to be at least suggested—I am not sure what investigative work is being done to identify this—that the government is of the view that there have not been cases since the Liddy case in which someone has obtained some unfair advantage by the use of evidence of their good character in enabling them to get a reduced sentence. That is, it had not been an issue; I think it is probably too far to say that it was suggested that there would be no instances of utilising or taking that opportunity, but it seems as though there were no judgements or cases in which the judgement traversed the question of the legitimacy of relying on character evidence of the accused in the manner which is to be cured.

I certainly hope that is the case, because it would be surely a gross act of negligence on the part of any government or Attorney (and I appreciate that the current Attorney has not been there for the entire time since 2002) if there was a failure to act on something which would produce such a gross inequity in dealing with these cases, and in particular some affront, I think, to the victims and their families, if they were to find that someone had received some unfair benefit in sentencing as a result of having access to good behaviour submissions.

Another thing that is curious to the opposition is that, whilst this legislation has merit and we will support it, when the Attorney-General presented this for our consideration in the parliament, having given notice prior to the election that they intended to introduce legislation to deal with this matter, at the time of introducing this into the parliament, the government gave credit to the work of Ms Nicole Stevens (I do not know her correct title so I will not attempt to identify it), who is a researcher at the University of South Australia. She authored a study outlining the reasons why South Australia should adopt the 2009 New South Wales amendments which I referred to earlier and which only allow, in their instance, for paedophiles to use examples of their past good character as mitigation if they had not used that 'good character' to fool victims into feeling safe or to get them away from parents.

She submitted at the time of publishing her work that there were instances where the use of good character within child sexual abuse sentencing provided some contradictions and had found in her research that paedophiles in these circumstances were commonly allowed to use their community service and high standing. These were in circumstances, usually of employment or voluntary contributions, as priests, court officials (as we know, we have had the very famous case of R v Liddy), youth workers, teachers and carers, to achieve, she claimed in her academic study, some influence on the reduction of sentences.

I have not read Ms Stevens' report, but it has been reported upon, and when the government announced that they would introduce legislation to deal with this matter (which they now have done), they did it without giving Ms Stevens any credit in the Attorney's second reading explanation. I am disappointed to note that because some people give a lot in their professional and sometimes voluntary capacities. People who have undertaken considerable research, for example, at an academic level should be recognised and acknowledged when they have to deal with such unsavoury topics as these, particularly. They have used up their research time and their intellect to contribute to that, and I think that should be acknowledged.

It is true that, at the time the government announced they would do this, prior to the election and subsequent to the publication of Ms Stevens' report, that people such as Dr Freda Briggs—I think she is now an associate professor. Again, I have known Ms Briggs for many years. She has provided advice and support in the child abuse area over decades, so I would want to give her correct title now. In any event, I know that she holds a chair in relation to children's matters with the University of South Australia. If I were to describe her as professor, I hope I am not diminishing her title.

Professor Briggs, at the time, came out to say that this was an announcement of the government that was welcomed. She, too, has worked extensively in the area of child protection. According to her statements that were published at the time, she said:

So often a principal will come into court and say 'this is the best teacher we have ever had' or 'he volunteers to take sport' or 'he volunteers to go on camps'…

If she is right; that is, to her knowledge, she is indicating that she is aware that it is 'so often'—not just once in 12 years but 'so often'—why is it that these matters have taken so long? Why has it taken 12 years?

The other person who was notable in making a statement at the time of the government's announcement was the Commissioner for Victims' Rights, Mr Michael O'Connell. Mr O'Connell had been appointed mid-2000s, I think, from memory. It was a commission that was established by the Rann government as being important for the protection of victims' rights, particularly when they were in need of consideration in sentencing, in compensation, in the opportunities to be part of the rehabilitative process, restorative justice—all of the important things to say when recognising that victims needed to be part of the criminal process. They needed recognition, they needed status and we needed to have a commissioner to do that.

I think that was actually quite an important initiative of the government and, at the time, fairly newly-elected into the parliament, I thought, 'We have got to give this a go; this will be very important.' I was disappointed to note last year that the Commissioner for Victims' Rights had not actually lodged an annual report for, I think, three or four years. It was brought to the attention of the Attorney, and there was an indication, I think, at that stage, that they were going to get together a composite report from the commissioner so that he could not only comply with his statutory obligations but we were going to get a sort of lump sum report to remedy that deficiency or, in fact, breach of the law, in not having filed his annual reports.

One of the most important aspects of having a commissioner, a guardian or a person who is appointed to protect the interests of children, or in this case victims generally— adults and children—is that they correspondingly have an obligation to report to this parliament, usually annually, usually in an annual report which is delivered to the minister in question, who must then have statutory obligations to, within a certain time limit, table it here in the parliament.

The benefit of these is that we in the parliament get to read about the experiences they have had in supervising this important area, be knowledgeable about what is happening in this arena and be able to give recommendations to the parliament. This is so that we might activate either in government (if it requires funding) or in the legislation (if it requires amendment) to ensure that we are actually doing what we are there to do: support victims of crime, protect children, keep the public safe—whether it is Commissioner of Police, whether it is a guardian for children, or whether it is victims of crime.

I was not surprised to see that the Commissioner for Victims' Rights, Michael O'Connell, came out to publicly endorse and in fact welcome the government's announcement, but what did surprise me was that he too felt that this was something that needed to be done and that it was a good start and he went on to say that he welcomed the changes. As was reported at the time, he said the following:

To be blunt, if a child sex offender has offended by means of their good character or unblemished reputation, the courts should be forbidden from discounting the offender's sentence.

He further said:

Offenders who have preyed on children and other vulnerable people are not 'good'. Some might have done some good deeds, sometimes of enormous benefit to the public, but their claim to be of 'good character' does not exculpate their responsibility for their crimes, nor should it mitigate their punishment.

The quote goes on:

Given the courts hold differing views on the relevance of 'good character' in sentencing adult child sex offenders, there should be a clear unequivocal statement in law that reputation of good character is irrelevant.

Paedophiles should be left in no doubt that their reputation and deeds of good character are not a safety mask to protect them from exposure to punishment that befits their crimes and the harm done.

He went on to say—and this is particularly important:

With the benefit of hindsight, it is evident that known sex offenders were once looked upon as role models who were rarely suspected by authorities but once suspected were, too often, not proactively pursued, so they continued offending with impunity.

This is Mr O'Connell's statement about the importance of the legislation—that it was welcomed—and the ill that it was to cure. I say this: perhaps if he had put this in his annual reports we might have had some indication of the need for this. Perhaps he might have been alerted to it remembering, of course, that he was in his position during the time of the investigation—indeed, the royal commission by the late Ted Mullighan into the institutional sexual abuse of children—and a period in which there were reports of the disgraceful circumstances that were alleged to exist on the APY lands in relation to the failure to protect children in relation to child sexual abuse.

He was there throughout the time there were discussions about compensation for children who were victims of child sexual abuse, particularly post the royal commission reports, and indeed when questions were raised about whether the level of compensation of the relevant period of the $50,000 cap should be lifted.

Here is a person who was not only appointed to be the Commissioner for Victims' Rights but who has been there during a period when child sexual abuse, it would have to be said, has featured in our legislation, in our media and in the courts at a high level. I am just disappointed to note that it apparently took him all this time to coincide with the government's decision to actually make a statement on this issue. Having done so, and being supported by Professor Briggs and of course the author of the report, the research from Ms Stevens, the government indicated that they would act. It is important to note that clearly it has taken several months to come in because an election had been called.

In the time I have been in the parliament, the government seems to get up in November. I think once they sat early in December to get through the BHP proposal in respect of Roxby Downs. If I am correct, we went into December to do that. However, largely, they get up in November and, in election years, we do not seem to get back here until at least May after elections. So, we are some six months without an opportunity to deal with legislation.

Each time we come up to an election, the opposition has expressed the view that we are ready and willing to continue to sit or, indeed, to come back at the end of January to have some opportunity to deal with legislation. This is the sort of thing that is important to be dealt with, but it does not get any opportunity because the government decides that they are not going to sit. Clearly, they are not going to be available for the scrutiny of the parliament immediately prior to the March elections, so we miss out on that opportunity. Nevertheless, we are here. What specifically are we remedying? The bill currently identifies an amendment to the law which applies, which is currently set out in the Criminal Law (Sentencing) Act 1988 in section 10(1), which provides:

In determining the sentence for an offence, the court must have regard to such of the following factors and principles as may be relevant:

Amongst other things:

the character, antecedents, age, means and physical or mental condition of the defendant;

That is the statutory embodiment of what has been the common law. There have been two famous cases, one of which drew the attention of the Law Society, in their submission to the Attorney, a copy of which I think is still available on their website. They gave consideration to perhaps the most famous case, the case of Ryan v The Queen, a High Court decision which touched on this issue, but on which the High Court were divided as to whether good character was a mitigating fact in the case of a former priest who had been convicted of serious sexual offences against 12 young boys over a period of 20 years—obviously a heinous crime.

When the justices considered the case, they were very much split. The decisions and perhaps the statements by Justice Kirby and—I don't think it was Justice McHugh, but I will correct that in this contribution if I find it separately. What was highlighted by the Law Society was Justice Kirby's statement. Justice Kirby was in the category of the divided judges who thought that it still should be allowed to be on the table for consideration. He said:

Courts must uphold the law, which treats sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care. However, there are three considerations that may be relevant to sentencing such offenders:

1) the need to avoid the actuality or appearance of punishing them because they are paedophiles, as distinct from punishing them for their offences;

2) the need to keep in mind, in a general way, the fact that the publicity and special opprobrium common to such convictions may add significantly to the actual punishment suffered by the prisoner in respects that should be given weight in fixing the judicial punishment that is required in the case; and

3) the need to consider the common elements of the offences, if any, that are proved and whether these help to explain (although not to justify) the conduct of the prisoner in the multiple instances proved.

Yes, I was incorrect; it was Justice Callinan with Justice Kirby who thought that evidence of previous good character was relevant in mitigation when sentencing. Hayne J disagreed, Gummow J did not comment, and McHugh J said he was inclined to disagree. So, there was not any majority position on this issue. It is hard to imagine—there was a higher level of trust and a higher level of offences; it was a horrible case.

When we come to South Australia and we see the sentencing of Mr Liddy in R v Liddy, members may be aware that there was an appeal against a sentence. He was given 25 years' imprisonment, he appealed against that sentence, and one if his grounds was appeal was the failure to take into account—or, if it was taken into account, sufficient weight was not given in the account—of evidence of previous good character. There was some split in the views that were expressed by the judges hearing that appeal. The late Justice Mullighan said:

The appellant used his otherwise good character and his position of trust and prominence in the community to gain the confidence of the parents of the boys, and indeed the boys themselves, which is a matter of aggravation. The fact that he had otherwise lived his life without offending and had made positive contributions to the community is a matter in his favour but, in all circumstances, does not justify a reduction in the sentence.

Interestingly, he is saying, yes, it can be taken into account, but in that particular case it was not sufficient to obviously diminish the sentence that he had been given. Justice Gray also said in relation to that case:

I am of the opinion that the matter needs to be cleared up, that there needs to be a statement that the law does not regard previous good character to be mitigating in certain cases, and that the operative principles should be one that Mullighan and Gray JJ agree about, that there is no mitigation where the offender has used his good character or good works as a mask or tool by which to access or control his victims. It does the law no credit to say that, even where the offender has used his good name as the means by which to commit his crimes, that fact is mitigating. In my view, it is at best neutral, at worst, an aggravating factor.

Even in the Liddy case, there was a diversity of views. What is interesting is that the Law Society, in considering these cases, suggests that probably—I think the most persuasive aspect in their argument is that they say, 'You don't need to do this in the statute, judges already have the discretion to be able to deal with this, to give it weight or no weight in the circumstances, and therefore you don't need to remove the discretion of the sentencing judge.'

It is commonly their argument that, if you have a fixed situation like that, it will actually lead to further inconsistencies by controlling one of the factors to be considered at a statutory level and it would lead to more inconsistency in decision-making. The consequence of that, in theory, then translates to people getting different sentences for similar types of crime.

In this instance, the Liberal opposition does not agree with the Law Society. We consider that this is a matter which is outside of the cases that they have considered, on which there have been a range of views from eminent judges.

It is a matter that deserves to be incorporated in the statute. If Ms Stevens, in her research at the University of South Australia, is right that there has in fact been a considerable number of cases in which this has been used by defendants to win them some extra reprieve on their sentence, that then does demonstrate that it needs to be dealt with at the statute level. So it is the opposition's view that we need to clean that up.

For the completeness of detailing the remedy of what is in this bill, for anyone who might read these contributions, the bill itself seeks to amend section 10 (to which I have referred) to exclude from the sentencing considerations of the court:

(ba) the good character or lack of previous convictions of the defendant if—

(i) the offence is a class 1 or class 2 offence within the meaning of the Child Sex Offenders Registration Act 2006; and

(ii) the court is satisfied that the defendant's alleged good character or lack of previous convictions was of assistance to the defendant in the commission of the offence;

If I were to use the case of Mr Liddy—because obviously the circumstances are well published—I do not think there is any doubt that he, by being a serving magistrate holding significant status in the community and being a senior representative in a surf life saving club of which he was a member, he was able to have captive (I suppose) in his social sphere young boys. Ultimately some were identified as being victims of multiple offences. In those circumstances I think anybody of sound mind out in the community would require that there be a complete exclusion of the opportunity for Mr Liddy to use that for his benefit. He needs to be sentenced without any reliance on alleged other good behaviour.

I have always thought it was rather curious in sentencing to claim that someone has been of good character just because of a lack of convictions in the past. It does raise the question, of course, about whether they had a long history of bad or criminal or inappropriate behaviour but just had not been caught. I have always thought it was a rather curious submission to make.

Often submissions are put on the basis of there being no previous convictions, as has been identified for the consideration in the negative. However, to present an argument that there has been a lack of convictions, particularly in cases where there has been a sustained child sexual abuse over a number of years, I would have thought, would not be a very smart thing to submit or attempt to get away with. I am pleased to say that Justice Mullighan and others obviously did not give a lot of weight to that because they clearly felt that it should not be used to in any way diminish the sentence, and Mr Liddy is paying the price, sitting at Her Majesty's pleasure.

So we are, as I say, supportive of the bill. I note that there has also been some tidying up of legislation to deal with now redundant sections on suspended sentences and firearms offences. I have read through the Attorney's contribution in that regard and one would hope that that has not actually been utilised in the interim. It appears to have been a complete oversight and therefore it needed to be remedied. We consent to the same.