Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

Concerns have been raised in the media and in parliament regarding the categories of offenders in relation to whom home detention is available as a sentencing option for the court under the Sentencing Act 2017 (the Sentencing Act).

Specifically, the concerns relate to the availability of home detention as a sentencing option for child sex offenders. In response to the concerns raised, I have undertaken a considered review of home detention and related provisions. The safety of South Australians, particularly children, and the welfare of victims are our highest priorities for sentencing reform. This parliament has already seen a one-page proposal from the opposition, which is a flimsy bandaid fix to a much larger problem with sentencing in South Australia.

In contrast, as Attorney-General I have worked expeditiously to overhaul the home detention laws and to clarify for the court exactly what restrictions are placed on a serious sexual offender to ensure there is absolutely no doubt about how the laws that are intended to protect the community from serious sexual offenders should be applied.

Before turning to the details of the bill, it needs to be said that the conduct of the opposition in the past few weeks has been disgraceful. The opposition leader and his colleagues have deliberately set about instilling fear into South Australians. Labor's scaremongering knows no bounds, and the politicising of these issues has been shameless. Rather than scoring cheap political points—

 The government, on the other hand, has been focussed on addressing legislative deficiencies in a sensible and thoughtful way. This bill, the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019, addresses community concerns about the ability of a court to permit offenders convicted of sexual offences to serve their sentence of imprisonment on home detention.

It clarifies the restrictions on the ability of a sentencing court to permit a serious sexual offender to serve a sentence of imprisonment pursuant to a home detention order, so that there can be no doubt about how the laws that are intended to protect the community from serious sexual offenders should be applied.

Further, the bill amends the Sentencing Act and the Correctional Services Act 1982 to address technical differences and policy inconsistencies between the provisions dealing with the imposition and operation of suspended sentences, intensive correction orders and home detention under the Correctional Services Act. It also addresses other issues that have been identified with the operation of the HDO and ICO schemes.

Finally, the bill will also repeal unnecessary provisions introduced by the former Labor government into the Sentencing Act. These provisions relate to 'taking matters into account' and have created uncertainty without introducing any benefit. They do not relate to home detention.

The current position is that a home detention sentence can only be granted to a person who is being sentenced for a 'serious sexual offence' if the court is satisfied that special reasons exist, namely, that by reason of the person being of advanced age or due to infirmity they no longer present a risk to the community and the interests of the community as a whole are better served by a home detention sentence.

Home detention is available as a court-ordered sentence and as a condition of an intensive correction order or a suspended sentence in certain circumstances. In short, there are three ways you can serve your sentence at home. It is also able to be granted to a prisoner who is serving a sentence by the chief executive of the Department for Correctional Services. While the issue that has received recent attention relates to court-ordered sentences of home detention, I considered it was important and indeed imperative to consider these other types of orders as well.

It is evident from the holistic comparison of each of these schemes that the application of the different options under the Sentencing Act is now a technical and complicated process. There are some differences between the schemes that are hard to justify or just make no sense. In addition, various operational issues arising out of the introduction of home detention as a sentencing option have been raised with me. Some of these issues equally apply to the operation of intensive corrections orders. The bill I present today:

  • tightens up the 'special reasons' test in section 71 of the Sentencing Act;
  • addresses the differences in terminology between the different options to ensure consistency in terminology;
  • addresses the differences in the 'precluding' offences for home detention, suspended sentences, and intensive corrections orders (unless there is a clear policy basis for the difference). This includes removing the discretion on a court to impose a suspended sentence for sexual offences but making provision for a 'young love' exception for certain offences only, colloquially known as the 'Romeo and Juliet defence';
  • addresses an issue in respect of the ability of both HDOs and ICOs to be made cumulative upon a sentence being served in prison, and also in respect of the interaction of the HDO and ICO provisions with provisions relating to unexpired parole in the Correctional Services Act;
  • addresses a loophole in the provisions for dealing with breaches of HDOs and ICOs, which presently permit an offender to breach their order with impunity in some circumstances; and finally
  • repeals unnecessary and confusing provisions that had been introduced for the first time into the Sentencing Act relating to the method for taking matters into account upon sentencing.

I propose to deal with each of these points in detail, but let me say this: the Sentencing Act, which was under complete review under the previous government and which, as the then opposition, we were happy to work with the then government to review, is always likely, with such a comprehensive review, to sometimes unearth some technical difficulties that will arise.

But this review that we have undertaken has really exposed structural weaknesses and deficits which, quite frankly, simply cannot continue and which we need to ensure, notwithstanding all the noise from the opposition now, are addressed to ensure that where there are weaknesses we do not create another route for people to access and exploit those opportunities that otherwise would be denied. The review has been comprehensive.

I want to particularly thank members of the Attorney-General's Department, including the DPP for his valued advice through this because, obviously, senior people in our department need to prosecute these matters and ensure that our law is abided by and that we have the safest possible regime to protect our community, as has been specified in our laws but which could be negatively exploited as a result of these weaknesses. I now deal with each of these points.

The bill amends the provision which created controversy in the recent matter of Mr Deboo. Presently, an offender being sentenced for a 'serious sexual offence' is precluded from serving that sentence on home detention unless 'special reasons' exist. Pursuant to section 71(4) of the Sentencing Act:

In deciding whether special reasons exist…the court must have regard to both of the following matters and only those matters:

(a) whether the defendant's advanced age or infirmity means that the defendant no longer presents an appreciable risk to the safety of the community…

(b) whether the interest of the community as a whole would be better served by the defendant serving the sentence on home detention rather than in custody.

I have considered whether it would be appropriate to remove any scope for a court to impose home detention for serious sexual offences at all. On balance, I am of the view that there is some merit in retaining very limited discretion for the court to permit home detention in the very limited circumstances of an offender who is genuinely no longer at risk of reoffending due to age or permanent infirmity, and where the interests of the community would be better served by permitting imprisonment to be served pursuant to an HDO.

There is little to be gained by imposing a genuinely infirmed prisoner on the correctional system (and thus the public purse) to maintain, in circumstances where the court does not otherwise form the view that the offending is so serious that the interests of the community require imprisonment. However, this of course must be balanced against other factors, such as the need to maintain public confidence in the criminal justice system.

Accordingly, I am of the view that it is appropriate to amend the provision relating to special reasons to tighten up how it applies. It was clearly intended that for a court to be satisfied that special reasons existed, they would need to be satisfied about both (a) and (b); however, I understand it has been suggested that the court does not need to be satisfied of both limbs. To remove any doubt about what was intended, this bill explicitly requires the court to 'be satisfied about' both limbs, and it will also require any 'infirmity' relied on to be permanent.

The list of 'precluding offences' is similar but not quite the same between suspended sentences and home detention. This just exposes another weakness. At the moment, there are more sexual offences excluded under home detention orders than there are potentially excluded from suspended sentences, and HDOs also preclude terrorist acts while suspended sentences do not. I am of the view that the offence lists should be amended to be consistent, except for a few exceptions where there is a clear policy basis for the difference.

Flowing from the above, it follows that it is presently legislatively possible to get a suspended sentence for a sexual offence, while being precluded from getting a HDO (that is, a home detention order) for those same sexual offences unless 'special reasons' exist. Again, I make the point that there is no basis upon which we can come into this house and plug up a deficiency in one area and not deal with the gaping hole in another.

I am of the view that it should not generally be possible to obtain a suspended sentence or an ICO for sexual offences, in line with the prohibition on such offenders receiving a home detention sentence. However, I am of the view that it would be appropriate, in closing this loophole for suspended sentences, to make provision for the court to continue to permit 'young love' offenders to serve their sentence as a suspended sentence or on home detention.

The court must already be satisfied that good reason exists to suspend a sentence of imprisonment. It would not be expected that a court would ever find good reason exists in circumstances of violence or coercion. It is thus proposed to define the limits of this exception by reference to the age difference of the offender (being a maximum of three years' age difference) and applicable only to offenders aged 18 or 19 years of age. This is in line with similar safeguards for the cohort under the Child Sex Offenders Registration Act 2006.

Further, section 96(7) of the Sentencing Act specifically provides for a home detention condition as part of a suspended sentence where the reason for suspending the sentence is due to the ill health, disability or frailty of the offender making serving time in prison unduly harsh. This provision existed prior to the introduction of home detention as a sentencing option in 2016. In my view, the ability of the court to impose home detention as part of a suspended sentence should now be removed. Again, we need to make these standards consistent across the board.

The provision setting out when an offender is permitted to leave their place of residence when subject to a home detention condition is essentially mirrored in intent in each of the provisions relating to HDOs, ICOs and home detention under the Correctional Services Act; however, there are some differences in terminology. These arose following close consideration of the HDO provisions during passage of the Sentencing Act, resulting in some changes to the terminology that were not mirrored in the ICO provisions or the home detention provisions in the Correctional Services Act.

Essentially, those members who were in the parliament at the time will recall that there was much public and parliamentary debate on under what circumstances someone who was going to be on a home detention order should be allowed to leave: for medical purposes, to undertake employment, study—sometimes under the supervision and permission of a correctional services officer—to attend a family funeral, or something of that nature.

There was a considerable amount of debate on this, so I am not in any way casting any blame as to when amendments were made and not replicated in some of the other acts. Sometimes that does happen. As I said earlier, that can occur when there is a comprehensive review of legislation and there are amendments along the way. This is an example of that, and it is proposed to amend these provisions to ensure consistency.

The stated purpose and eligibility of the intensive corrections order (ICO, a new form of sentencing option under the sentencing law) presupposes that an intervention program will be undertaken. However, the imposition of a condition to undertake an intervention program is discretionary, not mandatory. It is proposed to ensure that all offenders on an ICO will be required to undertake an intervention program to address this issue.

It is currently possible for a court to order both home detention and ICOs to be cumulative upon each other but, more usually, upon a term of imprisonment to be served in a prison. There are various operational issues why this is not desirable. A related issue arises in the context of the imposition of an ICO or an HDO for a defendant who has unexpired parole to be served at the date of fresh offending. The bill will address this issue as well.

The implications of breaching a suspended sentence are markedly different from the implications of breaching an HDO or an ICO. Upon breaching a suspended sentence, the offender is required to serve the entire sentence. However, upon breaching an HDO or an ICO, the offender is only required to serve the balance of the sentence outstanding after taking into account the period spent in compliance with the order.

There is an explanation for this difference. It reflects the different nature of a suspended sentence with very little supervision or restriction on autonomy compared with a sentence that is not suspended and is instead being served in the community with strict supervision and potentially severe restrictions on personal liberty and autonomy. However, I am told that an issue has arisen with the way the court has interpreted the provisions.

In short, the way the provision is currently worded permits an offender to remain in the community on home detention while breach proceedings are being determined, which may take some time if there are adjournments and delays, continue to breach their home detention, yet have virtually the entire period be taken into account to be deducted from the balance of the sentence to be served. Some may say that they have an opportunity to rort the system by ensuring that there are extra delays in the hearing of the determination on the breach proceedings. This interpretation undermines the intended consequences of breaching an HDO.

The bill addresses this by amending the legislation to be clear that the balance of the sentence as at the date of the breach should be served in prison, not from the date of the determination of whether the breach has occurred. The court will retain discretion to vary the balance to take into account time served in custody or on home detention in appropriate circumstances. Importantly, in undertaking a wholesale review of the home detention provisions, it was noted that there are unnecessary and confusing provisions, which I intend to deal with.

Firstly, sections 31 to 35 of the Sentencing Act were introduced in the Sentencing Act by the former Labor government. They were said to establish a framework for the court to take further charged offences into account in sentencing for a principal offence by imposing a greater penalty for the principal offence. Under this scheme, the defendant cannot receive a conviction for the further offences and does not receive a penalty for them at all. There appears to be absolutely no justification for this outcome. The provisions do not introduce any substantial benefit into the process and instead create uncertainty and the possibility of protracted legal argument about their operation. Given this, I propose to repeal them entirely.

To conclude, I remind the parliament that paedophiles and serious sexual offenders do not belong on our streets. This has long been a bipartisan position. Despite the opposition's efforts in recent weeks to instil fear into the community, I ask that members opposite work with us on the very laws the former government introduced so that we as a parliament close the loopholes, fix Labor's home detention mess and make sure that we have a comprehensive, clear and consistent set of legislation. I commend the bill to members, and I seek leave to insert the explanation of clauses into Hansard without my reading it.

Leave granted.

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—Repeal of Part 2 Division 2 Subdivision 3

Part 2 Division 2 Subdivision 3 is repealed.

5—Amendment of section 52—Interpretation and application

The cross reference to the Commonwealth law in the definition of terrorist act is amended.

6—Amendment of section 70—Home detention not available for certain offences

The cross reference to the Commonwealth law in the definition of terrorist act is amended.

7—Amendment of section 71—Home detention orders

Currently, a court cannot make a home detention order in respect of a person being sentenced as an adult for a serious sexual offence unless the court is satisfied that special reasons exist for the making of the order. In determining whether special reasons exist, the court can only take into account the 2 matters referred to in existing section 71(4). One amendment substitutes section 71(4) so that it refers to the court being satisfied of the matters set out in section 71(4) (rather than the current language of taking them into account).

Another amendment provides for an exception (from the prohibition on making a home detention order in respect of a person being sentenced as an adult for a serious sexual offence) if the offence is a prescribed serious sexual offence that occurred in prescribed circumstances (both of which are defined).

Definitions of foster parent, prescribed serious sexual offence, prescribed circumstances and a position of authority are inserted for the purposes of these amendments.

8—Amendment of section 73—Orders that court may make on breach of condition of home detention order etc

Section 73(4) is amended so that this subsection (which relates to when a court revokes a home detention order and orders that the balance of the sentence be served in custody) only relates to the circumstances where the residence of a person subject to the home detention order is no longer suitable and no other suitable residence is available for the person's detention.

New subsection (4a) is inserted. It relates to when a court revokes a home detention order for breach of a condition of the order and orders that the balance of the sentence be served in custody. It clarifies (in conjunction with inserted subsection (4b)) when the balance of the sentence commences and the periods that may be taken into account by the court in reducing that sentence.

Another amendment repeals section 73(4)(b) (which provided for a reduction of the sentence to be served in custody if special circumstances justified the reduction).

9—Amendment of section 80—Intensive correction not available for certain offences

These amendments provided that the power to impose intensive correction orders (under the Subdivision) are not exercisable in relation to an offence involving a terrorist act. The cross reference to the Commonwealth law in the definition of terrorist act is amended.

10—Amendment of section 81—Intensive correction orders

Currently, section 81(3)(a) provides that an intensive correction order must not be made if the sentence is to be served concurrently with a term of imprisonment then being served, or about to be served, by the defendant. One amendment adds to that paragraph the circumstance where the sentence is to be served cumulatively on

another term of imprisonment (other than a term of imprisonment to be served subject to an intensive correction order).

Another amendment inserts section 81(3)(ab), which adds to the list of circumstances in which an intensive correction order must not be made. Inserted paragraph (ab) is identical to section 71(2)(b) (which relates to circumstances in which a home detention order must not be made). The only difference is that the power of the court to make an intensive correction order for a person being sentenced as an adult for a serious sexual offence if satisfied that special reasons exist is not limited in the same way as that power in respect of home detention orders.

Definitions are inserted for the purposes of these amendments.

11—Amendment of section 82—Conditions of intensive correction order

One amendment provides that a home detention order will be subject to a condition requiring the person to undertake an intervention program. The other amendment is consequential.

12—Amendment of section 83—Orders that court may make on breach of condition of intensive correction order etc

The amendments inserting subsections (3) and (3a) are consistent with the amendments inserting section 73(4a) and (4b).

The amendments to section 83(4) are designed to make this provision consistent with section 72(1)(a) (the equivalent provision relating to home detention orders).

13—Amendment of section 95—Interpretation and application of Part

One amendment provides that the powers under the Part (to impose non custodial community based sentences) are not exercisable in relation to an offence involving a terrorist act. Another amendment relates to the interpretation of the reference to an offence of murder (and aligns the provision with section 70 (which relates to home detention orders)).

14—Amendment of section 96—Suspension of imprisonment on defendant entering into bond

Currently, a court cannot suspend a sentence of imprisonment in respect of a person being sentenced as an adult for (among other things) a designated offence and, during the 5 year period immediately preceding the date on which the relevant offence was committed, a court has suspended a sentence of imprisonment or period of detention imposed on the defendant for a designated offence. Currently, the list of designated offences includes certain offences that are (in Part 3 of the Act) included in lists of serious sexual offences.

The amendment that inserts paragraph (ba) into section 96(3) provides that a court cannot suspend a sentence of imprisonment in respect of an adult being sentenced for a serious sexual offence. Consequential amendments are made deleting paragraph (i) from the definition of designated offence (this paragraph lists the designated offences that are (in Part 3) listed as serious sexual offences).

Another amendment then inserts a definition of serious sexual offence (which is consistent with the definition in section 72 (the equivalent provision relating to home detention orders)).

Certain serious sexual offences (listed in subparagraph (ii) of the definition) are excluded from the definition of serious sexual offence if the offence occurred in prescribed circumstances (which is defined).

Section 96(7) is deleted.

15—Amendment of section 106—Provisions relating to supervision in the community

16—Repeal of section 109

17—Amendment of section 114—Orders that court may make on breach of bond

These amendments are consequential on the deletion of section 96(7).

Schedule 1—Related amendments and transitional provisions

Part 1—Related amendments to Correctional Services Act 1982

1—Amendment of section 37A—Release on home detention

The amendments to section 37A(3)(a) are designed to make this provision consistent with section 72(1)(a) (the equivalent provision relating to home detention orders).

2—Amendment of section 75—Automatic cancellation of parole on imprisonment for offence committed while on parole

Currently, section 75(1)(a) provides that where a person is sentenced to imprisonment for an offence committed while on parole, the person is liable to serve in prison the balance of the sentence. This does not apply if the sentence is suspended.

One amendment provides that the provision also does not apply if the person is ordered to serve the sentence (for the offence committed while on parole) subject to a home detention order or an intensive correction order.

Another amendment provides that, if a person is sentenced to imprisonment for an offence committed while on parole and the sentence is suspended or the person is ordered to serve the sentence subject to a home detention order or an intensive correction order, the person's parole is cancelled.

Part 2—Transitional provisions

3—Transitional provisions

The amendments apply to the sentencing of a defendant after the commencement of the measure, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.

The amendments also apply to proceedings for a breach of a condition of a home detention order or intensive correction order regardless of whether the breach to which the proceedings relate was committed before or after that commencement.

Debate adjourned on motion of Mr Brown.