Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

I thank all members who have made a contribution to the debate in respect of the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill 2019 for their very thoughtful consideration of the matters that have been raised and the ills that the bill proposes to address.

I make a couple of observations that I hope will put some perspective into what we are doing here in relation to the bill. Firstly, I do not promise that the bill is a panacea of absolute consideration of all matters to deal with sentencing. It is not. It is designed to address a number of deficiencies, which have been brought to our attention, in as comprehensive a way as we can to ensure that there is some consistency of approach.

There are a number of other aspects in relation to sentencing that are under consideration by the government, one of which is well known and that is the question of sentence discounting, on which I am expecting a report from Mr Brian Martin QC, former chief justice of the Northern Territory, who has been commissioned by the government to provide us with a review on that matter. For those of you who are new in the house, that relates to questions of significant percentage discount given to people who plead guilty early and also significant discounting available on sentences for those who help the police get someone else into custody, which is commonly called the supergrass provision, which means if you squeal on someone else you have a chance of getting some discount.

These things are a matter of continuous review. We need to do the best we can in here to make sure that we have a balance between respecting the separation of powers in the role of this parliament and the role of the judiciary, and the discretion that they have in relation to the application of the laws that we make here and that they implement, together with community expectation and how we best protect the community.

Sentencing has always been a vexed issue as far as the public is concerned and it becomes particularly vexed when particular groups become victims themselves. How effective they might alone be in taking up the challenge depends upon their capacity to articulate their plight and the sympathy of media and other public outlets to support it. Let me say that in the time I have had anything to do with the legal world, which is largely in the last 35 years, I have seen the plight and pain of those who are victims of crime, particularly serious crime. They have a universally consistent position—that is, they are outraged at what has been done to them or the person they love.

They have different views on how the person or persons found guilty should be dealt with, and there is a varying degree of forgiveness that comes in that category, but there is no question that they are incensed by what has happened to them or members of their family. They want something done about it, in different variations, of course, as to the level of sentence that might apply to these people, but they want something done about it because they do not want other people to suffer in those circumstances, whether they be the families who have been victims in other famous cases or, more recently, in the Deboo case that has been referred to in this debate.

I expect the family of the little girl who was murdered in the 1950s on the West Coast, for which Maxwell Stuart was subsequently the last convicted person sentenced to hang in South Australia, was equally outraged, whether Mr Stuart was guilty or not. As it turned out, after a royal commission and, preceding that, trips to the Privy Council and appeals, his conviction was quashed. Nevertheless, he served some time in prison. The pain of loss experienced by people as a result of their little child being a victim is forever with them.

This is a very painful exercise and so we here have to try to address the balance, as I have said. Working with the previous government in the development of the Sentencing Act 2017, which is now the statutory tablet to apply in these cases, three new themes came through. Forget about Maxwell Stuart's era. We had been through eras of capital punishment, and that no longer applies in South Australia. We have contemporised different forms of sentence.

The introduction of community service orders was quite pioneering 30 or 40 years ago, but fast-forward to 2016 and we are dealing with three new paradigms. These were important, and we supported the former government in dealing with those. One was to put in the statute a primary obligation ensuring that public safety was the paramount consideration. That was not the word that was used, but it was expressed in the new law, which was quite new, as follows: 'The primary purpose,' as it is described, 'for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general)'. Public safety had been a consideration, but this was the first time it was to be at the level of a primary purpose.

Another provision in the act complements that but remains as 'Secondary sentencing purposes'. Some are new, and they include the following:

(1) The secondary purposes for sentencing a defendant for an offence are as follows:

(a) to ensure that the defendant—

(i) is punished by the offending behaviour; and

(ii) is held accountable to the community for the offending behaviour;

(b) to publicly denounce the offending behaviour;

This was a new expression ensuring that there was punishment but also that there was a level of accountability to the community, generally. The act goes on to provide in section 4(1):

(c) to publicly recognise the harm done to the community and to any victim of the offending behaviour;

(d) to deter the defendant and others in the community from committing offences;

(e) to promote the rehabilitation of the defendant.

Paragraphs (d) and (e) have been around for a long time, but (c) was to 'recognise the harm'. This really just put in statutory form what had already developed as a practice, and that was to hear from the victim through a certain statement, sometimes in writing, sometimes orally and sometimes through a representative, before sentence was passed. This was a statutory, contemporary assessment of what are really important principles, but all of them had to sit behind the primary purpose given to number one, which was public safety.

The second point about this new set of laws is in regard to the procedural obligations. They are also now set out in the act, largely in division 2, and they include that the prosecutor has to provide the particulars of the victim's injury. Again, this had been developed by practice. It is not to include the disclosure of this information if the victim does not consent to that, or is of an age where they do not consent to that, but it is an important statutory imposition.

The victim impact statements, which I have referred to, can be made either orally or in writing. There is the codification by the obligation to consider community impact statements, and I remind members of this. That can be done either directly or via the prosecutor or the Commissioner for Victim's Rights, who may, if they think fit, provide the sentencing court with (a) a written statement of the effect of the offence for people living or working in a certain location, which is described as a neighbourhood impact statement; or (b) a written statement about the effect of the offence on the community generally, namely, a social impact statement.

I remind members of the existence of that and its importance because it was recognised that this should be in the law, that this should be in the statute. It is available, and it is to be applied. There are also provisions for pre-sentence reports to find out particulars of the defendant themselves, their physical or mental condition, personal circumstances, history, etc.; expert evidence, which obviously can include a psychiatric medical practitioner's evidence, for example; and a number of other aspects that are set down and very clearly identified to be taken into consideration by the sentencing court. The parliament at that stage—it was only a couple of years ago—made it very clear in the statute what the sentencing purposes were to be and what principles were to apply.

The third thing it did, with our blessing as the opposition at the time, was enable an enactment of new types of sentencing. There was provision to be able to make findings in respect of a charge and not record a conviction but, if we go straight to where there is a conviction, it set out what the court's options were. It maintained the right to fine and imprison; they are obvious. It maintained the right to have a suspended sentence; that is, a term of imprisonment is suspended on the basis that you do or do not do certain things. If you breach that and it is a breach of the law, then you have to serve the sentence for that particular breach in addition to your original sentence.

It added a new area of home detention. As other speakers have said, this was not without controversy. We, the then opposition, took the view that there were certain people who should be excluded from even having that right. We made that clear in the debate, and various amendments were made. We accepted the then government's view that, in circumstances where someone may be in a very serious state of frailty—aged and infirm, which was the sort of language we used in the suspended sentence laws—there may be cases that would warrant home detention as an appropriate alternative sentencing option.

I remember being here in this parliament and being quite critical of the then attorney for the example he used, which was historical sexual abuse against a nine year old; nevertheless, I did accept that there may be circumstances where that might apply. They introduced a second new type of sentencing, which was the intensive correction order. This followed on from Victoria, which had recently introduced this new option where there needed to be a capacity not to be in a detention facility.

You could be living at home, but there was an obligation to participate in certain activities, usually some rehabilitation program or training, and you were under constant supervision, with or without bracelets and those sorts of things. The reality is that there was a very strong commitment and involvement, usually by a Correctional Services officer, to make sure that was being complied with. There was other capacity to deal with things such as when a prison term, or even a community custodial situation, is not appropriate at all. Options such as a fine, bond, community service, etc. are then available.

I think it was appropriate that the then government sat down with all the players, including the opposition, and worked through how we would bring forward the then 1988 law to contemporary standards. I commended them for that, and I think we are better for it overall. However, in the transfer and development of these, some mistakes were made in the drafting. As I said before, the DPP brought a number of these to our attention, and I thanked him for that. Having highlighted that, we obviously set about to try to remedy some of this.

Some of the issues in this bill relate to matters raised by the DPP last year. They were not seen as necessarily urgent, but we accumulated them for the purposes of trying to have some resolution of what became more public cases of access to home detention, or at least the attempt to seek home detention. We are here because we need to address deficiencies. I think these are fairly comprehensive. They do not deal with all sentencing issues, as I say. For example, we have not dealt with back-end home detention, which is a common description for the capacity of a chief executive in the Corrections department to release a person from custody to a home detention circumstance.

However, there are ministerial directions in place to ensure that this is not exploited or abused. One very significant case, which occurred only in the last year or so, involved a judge of the Supreme Court refusing to grant home detention and ordering a significant period of imprisonment. It was met with an executive decision of the chief executive of Corrections six weeks into the sentence, after which he then released the prisoner. The Supreme Court's response to that was, understandably, outrage and very severe commentary.

I have discussed this matter with the Minister for Correctional Services and Minister for Police, as he is, and I am certainly confident in ensuring that we do not have any exploitation or abuse in those circumstances. I think most members would understand the reason for having the capacity to do that, but it is important for all the reasons set out in the Sentencing Act that we recognise the community's expectation and confidence in us to ensure it is maintained by the judicial system, the corrections system and the police. These are all areas of security in which the public need to feel confident, and I think they mostly do. It is our job, and in particular my job as the first law officer of the state, to ensure that is maintained.

That said, we consulted a number of people on the bill. As some information has come in with a copy of the bill, which we brought to the parliament as quickly as the parliament resumed, it is appropriate that we are now debating it, but, contemporaneous with that, it has been sent out to what I would call the 'usual suspects' in relation to stakeholders. It is significant that we have received some of their responses, and I think it is important that I indicate to the parliament what they have been.

Firstly, our DPP, who has worked with us throughout, has made a couple of observations but otherwise indicates support for the bill. Typical of the Commonwealth DPP, Australia's federal prosecution service, they have given me a fairly wordy response, but it is helpful. It does not necessarily relate to federal offences but, as members might be aware, significant overlap applies in relation to terrorist offences, so we need to be apprised of their view on a number of those matters.

SAPOL also provided a submission. I value the work of SAPOL and thank them for their submission. In addition to setting out issues of what, as I say, we have described as the back-end home detention, which they cover in this submission—obviously we are already aware that needs to be monitored in that sense—they also made comment in relation to the exceptions for 'young love', as we have described it, or the 'Romeo and Juliet' clauses, to deal with home detention being available for people in those categories. Otherwise, they have generally indicated their support for both the government's intent and the terms of the bill.

Bronwyn Killmier, our relatively newly appointed Commissioner for Victims' Rights, who has been working very closely with the government and giving advice on a number of matters, has indicated her support, confirming that high-risk offenders should not have access to home-based custodial sentences for all the reasons that are obvious. She points out a very important issue, which I bring to the attention of the house. I think I have before, but it is something we are still working on.

We as a government are committed to ensuring that victims are kept informed of the progress of cases. One of the practical problems is that when somebody is arrested for an offence, the police know about that person. They are charged and then they are handed over to the court system, and the police may or may not be participatory in the management of that person. It may be transferred to the DPP from the police prosecution, and so a different cohort of people is managing that and it is a different group of people who then need to be in touch with the victims. Then, of course, they go into corrections, if they are in custody as a result of the sentence, and it is another cohort of people who need to keep in touch with the victims.

As can be seen, we committed to ensuring that there be some improvement in the notification to victims, whatever government instrumentality is in charge of the defendant, so that if they are coming up for trial, coming up for bail applications, coming up for sentencing or coming up for parole, all the way through that process the victims are kept informed.

The commissioner has certainly conveyed to the government her view that we should have an opt-out system rather than an opt-in system; that is, victims are advised all the way through this process unless they indicate that they no longer wish to have anything to do with the matter and they do not want to be informed of anything further. I think there is some benefit. What we are trying to do at this stage is work out the transition places and pursue that, because she is absolutely right and the government is supportive of the concept of trying to keep our victims in the loop.

The unsurprising response in the negative to this legislation is, firstly, from the Chief Justice of the Supreme Court, who takes the view—and I respect it; we do not agree with it, but we respect it—that the restrictions in relation to sentencing that are placed in this bill are both unnecessary and undesirable and that they interfere with sentencing discretion. Whilst it is an entirely predictable response from the Chief Justice, it has been taken into account. In this instance, it has not been followed because we feel that there is an obligation on the parliament to place some restrictions.

Similarly, perhaps not quite as forcefully, the Chief Magistrate, who also has to deal with a number of these matters, has raised some observations more than any objection. As usual, with her happy disposition she is always prepared to discuss matters further. I thank her for her advice. She has raised some smaller matters.

The Legal Services Commission, which I suppose is the largest criminal defence organisation in the state, has got back to us to again express the view that reducing available sentencing options for any offence, even if they are very serious, is not serving the interests of justice. They take the view that these restrictions should not be advanced. They have made some comment in relation to mandatory sentencing. For anyone who reads the submissions, I want it to be absolutely clear that the bill has nothing do with mandatory sentencing at all: it is to do with access to the alternative sentencing options, not the sentencing, in the first instance, of the length of imprisonment.

The one which we do not have, and which I am expecting to receive, is from the Department for Correctional Services, which has a very important role in dealing with prisoners who are convicted into custody and which may or may not be managing the ultimate release of those persons into home detention or community-based sentencing at some time during the course of that person's incarceration. If we have that information, I will make sure that it is made available to the opposition before we conclude the debate on this matter in another place, if the bill is passed this week. I will make sure that that has been given, but I expect that they will not have any objection to the bill. Nevertheless, as I say, I think it is important that we have that made available.

In any event, there is a diversity of views. There is nothing exceptional or of any great surprise about what has been presented. If I hear from the Law Society or the Bar Association, I expect their view will be closer to that of the Chief Justice rather than to other agencies, but the government has made it very clear in its statements. I think, in fairness, the opposition has also made it very clear that they want some statutory restriction in relation to home detention availability. Whilst on this side of the house we might quip about them being a bit Johnny-come-lately in supporting some restriction in that, they have and it is important that we work as cooperatively as we can in relation to that.

Finally, I would like to raise the issue of no exceptions. One of the foreshadowed amendments of the opposition is to cut out home detention in circumstances where someone is convicted of a serious sexual offence, but then in the next breath they say, 'We want to accommodate the young love and we want to allow that to be an exception.' Let me just say that for every law there is there are always exceptions, and there are usually very good arguments for them, but it is not really appropriate to come in and say, 'We want this to be blanket, but instead of the rules that you want we want to actually give an exception for young love in this category.'

Let me tell you why and give an example. Everyone expects that if there was a consensual sexual relationship between a 17 year old and a 15 year old we are not expecting to grab the 17 year old by the scruff of the neck and throw them in prison. I think everyone understands that. But what if the 17 year old viciously rapes the 15 year old? It is a clear criminal offence. Sure, it is less than three years difference in age and they are both still teenagers, but it is not conduct that is acceptable. We do have to allow there to be discretion in relation to some of these matters. There will always be exceptions, but it does seem a little odd that in this instance we are going to blanket the obligation under this amendment and not the other. I seek leave to continue my remarks.