CRIMINAL LAW (SENTENCING) (SUSPENDED SENTENCES) AMENDMENT BILL 7 August 2014

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:56): I rise to speak on the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill 2014, and indicate that I will be the lead speaker for the opposition. I understand we have some other worthy proposed contributors to this debate. 

I start by confirming again that I am a legal practitioner and a member of the South Australian Bar Association and former member of the Law Society of South Australia, both of whom I will be referring to in submissions on this debate. The opposition's position on this matter is, in short, that we will support the bill, not because we consider that it is of huge merit—because I do propose to address some shortcomings in relation to what is proposed—but that the government is pressing this bill, and the effect of it is yet to be seen.  

The situation is really this: on 6 March, the week before the state election this year, the government, and in particular the Attorney-General, issued a press release entitled 'Mandatory imprisonment for violent offenders.' In the announcement Labor promised 'All convicted serious violent offenders will spend time in jail' and said that 'days of fully suspended sentences for serious violence will be over'. They claimed that courts should not be able to fully suspend a sentence of two years or more for a serious violent offence, and that 'jail time must be served.’  

I have read a lot of these press releases over my time, and it is fair to say that this is fairly emotional in the statements it made. It is obviously designed to present a message that the government, especially just prior to the election, will be tough on crime and, in particular, on serious crime, and that it was going to take action. Implicit in all of this is that the law that prevailed then enabled a situation where people were getting sentences for incarceration for significant times, but that for one reason or another the judiciary was being too lax in their treatment of these matters, because they were going ahead and suspending them, and that this in some way was some rampant abuse that we could not tolerate and that the government were not going to tolerate and that they were promising South Australian voters they would remedy.  

I had to have a little chuckle at the time I read in the paper just recently when the honourable member Mr Brokenshire, of another place, announced that he wanted to deal with alcohol-fuelled violence that resulted in a death—in particular what is colloquially known as the one-punch scenario—by introducing a mandatory eight-year imprisonment, coupled with reform in this area of the law to specifically exclude the opportunity to rely on being under the influence of alcohol or drugs being taken into account as some part of the defence or excuse for their behaviour.  

There was comment made by others relevant to this announcement made by Mr Brokenshire, and the response from the Attorney was that this was just attention seeking by the proponent, Mr Brokenshire, which I thought was a little curious, given the tenor of the type of press release I have just read out. Talk about the pot calling the kettle black, but in any event—  

The Hon. J.R. Rau: It's irony.  

Ms CHAPMAN: There is nothing ironic about it, minister. It was a blatant attentionseeking approach in that case for the government on 6 March to get adequate attention and try and secure votes. Well, it might have worked. Obviously they ultimately formed government, but, in any event, that is the way things go. Let's just look, then, at what this bill does, which purports to impose this obligation resulting in any violent offender having to spend some time in prison.  

Can I start with the general ill that is proposed to be cured here. It is fair to say that on our side of the house we recognise that there is certainly some commentary around the community's lack of confidence in suspended sentencing. In recognising that, prior to the election, from our side of politics we undertook to have some significant and, from our point of view, broader review and reform of suspended sentencing and to limit the availability of suspended sentences.  

Because, whilst we can be critical of the government trying to sort of capture the attention of the disquiet in the community about this issue, there is I think at least a perception by some in the community that offenders all too often have had the benefit of immediate release as a result of their sentence of imprisonment being suspended, and this is seen as having got off too lightly. There are some circumstances where there is public outrage about it, and there are obviously calls for review—sometimes appeal—begging the DPP or at least the Attorney-General to encourage that there be some consideration by the DPP to argue that the sentencing was either manifestly inadequate and/or the suspension was unwarranted.  

So, there is a general feeling—and I suppose if one were to even assess it from talkback radio and the like—where there are members of the public who get outraged by certain cases in that regard. I do not share that view, but we on this side of the house recognise that there was some public disquiet and so we agreed that it should be reviewed and that we should set down some helpful (we would have thought, if we were in government) ways to assist the judiciary towards some consistency but, as we always argue, providing for some flexibility to ensure justice is done.  

In the last parliament, with our agreement, the Labor government raised the threshold for certain offenders to receive a suspended sentence from the good reason test to the exceptional circumstances test. I am not certain how significant that raising of the threshold has been in the number of suspended sentences that have not been granted as a result of that amendment that otherwise previously would have been granted, but we were, I suppose, sending a message to the judiciary that it really had to be that next threshold up to be satisfied that they suspend the sentence.  

In relation to suspended sentences, there are, of course, certain circumstances where there are very good reasons why a sentence is suspended. The judicial officer or judge in a number of these circumstances will publish in their sentencing remarks reasons such as having the obligation to provide for dependent children. Perhaps the other parent or guardian is not available and there would be a very serious impact on the children in that situation if their only remaining parent or guardian were incarcerated. There are some exceptional circumstances, as I say, which the public sometimes sees the offender getting the benefit of unduly but, after a judge has considered the interests
of other parties, such as children, they will take that on.  

Another classic example, of course, is where the likelihood of being able to secure employment upon release is significantly undermined and, again, it is usually in circumstances coupled with a high level of dependency on that person's income. That may be a spouse or a parent or children and the like. We have always respected the need to have the opportunity of suspended sentences, but the government's decision prior to the election was to come out and say, 'Well, look, we're going to address an issue of offenders' exploitation of the accessibility to the suspended sentence in a particular stratum,' and in that instance they then said, 'We're going to take out the serious violent offenders.' It can be a serious offender in other areas, but in this case it was in relation to violence.  

That was the category that they plucked out for the purposes of giving a new set of rules for the suspended sentence to apply. As is typical of the government's mantra on these things and the spin that they put on it, they described this as a mandatory imprisonment effect and that certainly brings to pass all of the debates that we have had on mandatory minimum sentencing policy. This is why, I suppose, it is rather curious to think that, having presented this in the public arena prior to the election as imposing mandatory imprisonment, he should be so scathing as to the intentions of Mr Brokenshire in respect of his mandatory minimum sentencing of eight years for alcohol-fuelled violence resulting in death. However, leaving aside that little occasion of hypocrisy—  

The Hon. J.R. Rau interjecting:  

Ms CHAPMAN: Irony? Don't try and diminish it. It is completely hypocritical, but, in any event, I would just like to point out that, in fact, the government's proposal, we on this side of the house suggest, actually does not introduce a mandatory minimum period except possibly for one day.  

The Hon. J.R. Rau interjecting:  

Ms CHAPMAN: I know. The Attorney interjects to tell me that, 'We didn’t say a minimum period.' He did not exactly say that, but he certainly gave an impression to the public in the press release of 6 March titled 'Mandatory imprisonment for violent offenders'. It did not say '(possibly only for one day)': it was just silent on that so, of course, the government was able to put its little bit of spin on this.  

The policy did say that the law would not interfere with the court's discretion to set the sentence length. So, here is the outcome. If the head sentence set by the court for a violent offence is more than two years, Labor proposes that a fully suspended sentence should not be available and gaol time must be served.  

The Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill before us, however, which purports to introduce this policy, amends the Criminal Law (Sentencing) Act so that, when an adult is convicted of manslaughter or of causing serious harm, under section 13 and section 23 of the Criminal Law Consolidation Act, and is sentenced for two years or more of imprisonment, then, if the court finds good reason to suspend the sentence, the sentencing court can only partially suspend the
sentence. This partial suspension, of course, can result in there being only one day.  

The Hon. J.R. Rau interjecting:  

Ms CHAPMAN: The Attorney interjects to say that he has an amendment, which I did receive. The Attorney is indicating that he foreshadows introducing an amendment to ensure that, where there is to be a term of imprisonment, I am assuming this to read that, essentially, the prisoner would have to serve one-fifth of the nonparole period that has been fixed; therefore, if I am reading this correctly, if there was a five-month nonparole period, they would be obliged to serve one month, for example.  

The Hon. J.R. Rau: At least.  

Ms CHAPMAN: At least. I thank the Attorney for that indication because, otherwise, it just makes a complete mockery of the bill that is currently under consideration. With this bill, there is now going to be a three-tier system. We will have partial suspension of sentences allowed for sentences of less than 12 months, we will have suspended sentences and nonparole periods for sentences between 12 and 24 months, and we will have no full suspension of sentences if the sentence is more than 24 months.  

Can I just also indicate that it does not appear that this legislation, or indeed the number of people who are currently dealt with under this as serious violent offenders, is likely to have much of a direct impact. In fact, the Attorney-General had admitted this after announcing this policy. I will quote his statements on that famous program on FIVEaa:  

…in any given year the number of people who fit into this category is quite small…there's very, very few of them each year. So this by itself will have a very modest impact on the prison population…  

When the government provided a briefing in May this year, we were informed that, between 2009 and 2012, 42 offenders were found guilty of serious harm or manslaughter. Of those, 23 had a sentence of more than two years suspended so, of course, that just indicates the very small number that we are talking about.  

Consistent with that also is the government's expected projected costs in the policy document that it produced prior to the election. It published a policies costing document, brief as it was, which indicated that the total cost for policies per year for 'life on parole, mandatory imprisonment law to stop serious offenders changing their name and the limitation of suspended sentences' was to be a total of $600,000 per year.  

Obviously, this bill reflects only one part of that election policy. Even if all of the money were applied then we are only talking about very few numbers of extra prisoners being held. Given that the cost of detaining a prisoner is close to $100,000 a year, as I say, it would be an indication that the government would be expecting very few extra prisoners to be detained at any one time.  

Apparently my predecessor, as shadow attorney, sought some extra particulars in respect to the statistics and costing estimates but that has not been forthcoming. If it has, I should say, I will clarify that with my colleague in the other house, but we
understand it has not. In any event, it is not of such moment that it would interfere with our agreement to support the bill, as small an impact as it may have.  

The other matter is that, having already looked at this question of increasing the threshold for the applicability or availability of receiving a suspension on the sentence given, one has to consider whether there has been a reasonable period of time that has been granted to see whether that has had any real impact and the answer to that is, 'Probably not'. In any event, we all know why we are here—we are here because the government made this flowery announcement during the election campaign and we will see whether it works.  

For the record, I indicate that the SA Bar Association has indicated that it, of course— and I say 'of course' but, consistent with its usual approach in opposing any mandatory sentencing proposal—it therefore does not give its support to the bill. One matter that they do raise, apart from generally indicating that there is a judicial discretion and it should be retained—and I should say that it is supported by the fact that there is the capacity for the Crown to appeal against manifestly inadequate sentences, as I have said, so they maintain the view of keeping the judicial discretion. They do make an observation as follows:  

The specific category of offenders that the Attorney-General refers to in the Bill's Second Reading Speech has been necessary to attract special legislative treatment is 'reckless violent thugs who receive a sentence of imprisonment of two years or more'. If it is thought that this (or any other) specific category of offence or offenders ought to be less deserving of the remedial benefits of a suspended sentence of imprisonment where it is demonstrated that 'good reason' exists (as is the current test), then rather than the discretion being mandatorily removed, then a higher bar might be considered—for example, that 'special' (or even 'exceptional') reasons exist.  

Again, that relates to the steps that I think we have already taken in raising that threshold but, nevertheless, perhaps they have not caught up with that. Perhaps it has not been proclaimed, I do not know, I did not go back to check that but, nevertheless, I think the position is pretty clear. They say 'Keep the judicial discretion, there is not an ill to be cured and the rest of it is just all fanciful.'  

The Law Society has also looked at it. Again, they unsurprisingly oppose the bill. They have a consistent view in respect of anything that is mandatory in respect of the sentencing process. I have said this before and I am happy to say it again: from our perspective we are not strong on mandatory obligations in this area. We have to be very much persuaded that there is a need for that to occur but the actual effect of this bill is so minimal it seems not to be offensive as the strictly principled position that the Law Society has taken.  

The Law Society raises the question because on their assessment they consider that it does raise a question of extra prisoners and how they are going to be accommodated in the prison. I think they start from the basis that, even if it is only a few a year that might be caught by this, as they say:  

The society notes that figures show South Australia's prisons are beyond capacity. South Australia's nine jails have been absorbing a steady rise in prisoners that now exceed the Correctional Services Department's approved capacity.  

They go on to say:  

The Society questions how the Government plans to accommodate the extra prisoners that will result from this Bill. Increasing the capacity of our prisons is expensive and will require additional taxpayer resources. The community is not always better served by incarcerating people.  

The other thing that they raise in respect of their challenge to necessity for this type of legislation, apart from the principled aspect, is that they consider if the public holds a view in respect of suspended sentences giving a light option to members of the public, then they say:  

…Bills which impose mandatory sentencing arise from a misconception that judges are suspending sentences when they ought not to. It has been shown that when members of the public are fully informed about the particular circumstances of the case and the offender, 90 per cent of those surveyed view judges' sentences as appropriate.  

They go on to explain to us (and I am sure they have to the Attorney) various studies and reports prepared by the Australian Institute of Criminology and others to support that statement. They go on to say:  

We repeat our view that the focus should be on the conduct of the offender, not the offence itself. Manslaughter is a serious offence and will almost always result in the offender being imprisoned. However, there are occasionally some cases where the offence does not warrant immediate imprisonment. Some cases have, from time to time, captured the public's imagination with a high degree of sympathy towards the offender being coupled with concern at the unduly harsh consequence of a custodial sentence in the unusual circumstances of the offence.  

I will just add in this debate that I had the opportunity recently to attend the Remand Centre with the member for Morialta who is our newly appointed shadow minister for corrections—an excellent start that he has made in this area. I was particularly keen to learn about what capacity there is at the Remand Centre, as to what other policies we might develop in assisting both the management and humane treatment of prisoners in this space.  

I am also keen to work with the member for Morialta on areas of reform for prisoners in their rehabilitation, not just in the Remand Centre, because they are sometimes only there for a few months, although our trial lists are going out a bit and sometimes they are there for up to two years, I am told, which is pretty shocking. Nevertheless, I want to bring two things to this debate: one is that, when people are incarcerated—and this bill will capture a few more—there must be some addressing by the government of what they are going to do to help rehabilitate their behaviour, in particular towards domestic violence.  

Most of the people in this room would understand that a very significant number of people—and I just got the criminal statistics the other day. Australia wide, in assault cases—we are talking about violence here—the overwhelming majority are victims who are known to the offender and, quite frequently of that cohort, are actually related to them. Yet I was desperately unhappy to hear, when we visited recently—which was confirmed by information I had through our parole system—that at present there is not one single program in our prisons to help with the remediation of domestic violence conduct.  

In fact, recently I had an opportunity to view the hearing of an applicant for parole who had almost completed his full sentence, but was eligible for parole under his
sentencing arrangement. His application was rejected and an inquiry was made as to what program or what opportunity he had had to rehabilitate in relation to what were shocking acts of violence both to multiple people and property, and the answer was none, because there is not any available. It is still on the website: references to a trial that had been done some time ago by the government and some community counselling that is available for people who are dealing with anger management and the like.  

The reality is that, in our prisons today, we have no programs for people who are guilty of and incarcerated as a result of domestic violence. I am quite disturbed by that, not only because it is a huge cost to our prisons to have to keep these people incarcerated, and a few more under this legislation will occur, but even more important is the fact that in the end these people leave the prison—their sentence finishes.  

Even if they are not eligible for parole because they have not really been able to get into their head the understanding that what they have done is wrong and how they might control and manage their relationship breakdowns or anger as a result of any incidents that might spark them off into troubled and certainly criminal activity, we need to really address this issue. We need to make sure, when they do get out—which they inevitably will—that they are going to go back into the community with some capacity to, first, understand the horror that they have inflicted, and learn sufficient skills as to how they manage it in the future. Otherwise, we are just placing those people back in a state which will inevitably result in a repeat of behaviour which is at least unsociable, if not criminal. That, to me, is really what the government ought to be addressing its attention to, to ensure that we fix up some of these people on the way through.  

Again, just recently I was provided with some information from a group in New South Wales that is promoting—and I think the New South Wales government has taken up some pilot program to look at online programs for prisoners One of the criticisms I have heard from people in this area is that, apart from the fact that there is none, if you introduce something which is a four-week once a week attendance either at the prison library, resource centre, computer room, or wherever, at a community base, that is simply not enough time to deal with these issues and to actually have any real impact.  

One way, relatively inexpensively, of ensuring that there is a prolonged program which has some real effect and therefore is demonstrably more effective, according to the people who were presenting this, is to be able to have it online. What that means is that the prisoner can, in their own room, and often they are incarcerated for a good part of the day so they can have plenty of time to think about it, they can undertake the program, do the feedback work on it and send off their material and so on, all with the view to helping them understand what is not acceptable in their past behaviour to ensure that it is not repeated in the future.  

I certainly hope the government is going to follow up on some assistance in this regard. Violent offenders do deserve to have severe sentences imposed on them and we are even prepared to accept that they have to serve some portion of their non-parole period now it is going to be set at at least one-fifth of that, but let us understand that that will introduce some extra people into the prison and we need to ensure that those people are fit for residence next to any one of our families in any street or any town or
any place in South Australia when they get out, and if we do not deal with that then they will not be and the situation will be repeated. So, we support the bill.  

Committee Stage  

Ms CHAPMAN: I want to raise one matter under clause 6. During the course of the contribution by the member for Hartley, I just want to place on the record that I have found the letter of 6 June 2014 to my predecessor as shadow attorney from the Attorney, outlining some responses to the matters that had been raised in the May briefing. I just want to indicate that.  In fact, having reread it during that powerful contribution by the member for Hartley, I actually refreshed my memory and remembered that I had read it. I just have one question, Attorney. The last paragraph in this letter is in respect of the costings, which I have referred to in our contribution. About what the expected cost of the reform was and how many offenders and convictions there would be, you say, 'Given that this reform is a government election commitment, full costings will be provided in the upcoming state budget.' If you have not been able to identify them in the state budget, could you now tell us what the estimated cost of this is?