Sentencing (Miscellaneous) Amendment Bill

Second Reading

Today, I introduce a bill to amend the Sentencing Act 2017. This act commenced on 30 April 2018. It repealed and replaced the Criminal Law (Sentencing) Act 1988. Our judiciary and legal profession are still coming to terms with the extensive changes from the new sentencing regime in the short time that it has been in operation. Amongst other things, the Sentencing Act introduced amendments to home detention provisions contained in the repealed act, to preclude a home detention order as a sentencing option for certain offences. These include where an adult is sentenced for 'serious sexual offences' (if the maximum penalty is at least five years' imprisonment) and 'serious and organised crime offences'.

This reiterated the concern of the community that home detention should not be a sentencing option for this type of offending, and must be viewed as an alternative to custodial sentencing, rather than parole. Since the act has been in operation, the commonwealth Director of Public Prosecutions suggested that consideration be given to further amending the Sentencing Act to include commonwealth offences in the definitions of 'serious sexual offences' and 'serious and organised crime offences'.

The commonwealth offences to be included are those that are similar to the state offences already listed. Attempts to commit those offences will also be precluded from home detention for serious and organised crime offences to ensure this aligns with the current situation for attempts of serious sexual offences. It is proposed that the commonwealth offences for which home detention will not be available will be set out in regulations. It is intended to ensure that parity between commonwealth and state offences is maintained as much as possible, and that South Australia has a full and clear coverage over who should and who should not be entitled to receive home detention.

The bill also includes amendments to address minor issues that have been identified by key stakeholders while implementing the new Sentencing Act since its operation. Such issues have arisen as a result of drafting oversight or are matters that would otherwise benefit from clarification. Members will recall the extensive nature of the Sentencing Bill 2017 and the extent of work put into this bill to ensure the best possible outcome for the community, the judiciary and the legal profession.

As with any major reform, there is always the likelihood small aspects will need to be amended after its commencement. The items I will turn to momentarily have been raised during the consultation on this bill and otherwise; however, they do not cover every concern more broadly of the Sentencing Act reforms. I will continue to work with the profession and the judiciary on their broader concerns.

Turning to the other amendments of the bill, in summary, the minor amendments include:

amending terminology in a provision relating to sentencing reductions to ensure it is not interpreted in a way that allows a defendant to adjourn their arraignment hearing purely to preserve the maximum sentencing reduction;

clarification of the maximum length of a sentence of imprisonment applicable for an intensive corrections order;

clarification of the application of the definition of 'intervention program manager' as defined;

amending a reference to a 'case manager' to instead refer to a 'community corrections officer' in the provision relating to the conditions that may be imposed on bonds; and

deletion of an obsolete reference relating to the term of bonds.

Section 40 of the Sentencing Act sets out the sentencing reductions available when a defendant pleads guilty to certain offences. A concern has been raised that the phrase 'the period commencing immediately after the defendant's arraignment appearance' in section 40(3)(d) and (e) leaves it open for the defence to seek to adjourn the arraignment in order to preserve the 15 per cent or 10 per cent reduction for longer. The proposed amendment to include the wording 'the first date fixed for the arraignment of the defendant' avoids the potential for defendants to seek to adjourn matters simply to preserve a sentencing reduction for a greater period of time than was intended.

The suggested wording is the same as the wording that was contained in the Criminal Law (Sentencing) Act, until it was amended by the Summary Procedure (Indictable Offences) Amendment Act 2017. The amended wording was then replicated in the Sentencing Act for consistency. The rights of defendants whose arraignment is adjourned due to circumstances outside of their control will continue to be adequately protected by the considerations set out in section 40(4) of the act.

The issue in relation to intensive correction orders is an apparent anomaly between section 79(1)(a) and section 81(1)(a). Section 79(1)(a) suggests that a period of imprisonment of 12 months is the threshold at which consideration of an intensive correction order can apply, while section 81(1)(a) indicates that an intensive correction order can be for a maximum of two years. The ambiguity will be clarified by amending section 79(1)(a) to read '2 years' to marry up with section 81(1)(a).

The current definition of 'intervention program manager' in section 5 specifically refers to programs provided by the Courts Administration Authority. However, the Courts Administration Authority is only responsible for programs run under sections 29 and 30 of the act. All other (post sentence) programs are the responsibility of the Department for Correctional Services. The definition has been modified to clarify this. The current reference to a 'case manager' in section 98(7)(b) should refer to a 'community corrections officer' to ensure consistency with the terminology term used elsewhere in the section.

Finally, a previous upper limit of three years as the maximum term of a bond has been removed from the Sentencing Act. However, section 103(2) continues to include a reference to the three-year maximum. This was a drafting oversight that is rectified by the bill.

Again, I reiterate to the house the importance of this bill and ensuring only those who are truly appropriate for home detention are afforded that option. I thank the commonwealth and South Australian DPPs for their work and commend the bill to the house. I seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

4—Amendment of section 5—Interpretation

A definition of intervention program manager is inserted for the purposes of the measure.

5—Amendment of section 40—Reduction of sentences for guilty pleas in other case

Technical amendments are made to section 40.

6—Amendment of section 71—Home detention orders

Currently, a home detention order cannot be made in relation to a defendant being sentenced for certain offences set out in section 71, including serious and organised crime offences and serious sexual offences. The amendments allow for offences against a law of the Commonwealth to be prescribed as serious and organised crime offences or serious sexual offences. Another amendment includes an attempt to commit a serious and organised crime offence as a serious and organised crime offence for the purposes of section 71.

7—Amendment of section 79—Purpose of intensive correction order

A technical amendment is made to section 79.

8—Amendment of section 98—Conditions of bonds under this Act

The term 'case manager' is substituted with 'community corrections officer' in section 98, as the latter is the more appropriate term in the context of the provision.

9—Amendment of section 103—Variation or discharge of bond

A technical amendment is made to section 103.