CRIMINAL LAW (SENTENCING) (SUPERGRASS) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:37): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:37): I move:

That this bill be now read a second time.

The acute problem posed to our community by organised criminal gangs cannot be exaggerated. Gangs of this kind are involved in many criminal activities, such as the manufacture and trafficking of illicit drugs and the all too common and indiscriminate use of violence and firearms to resolve their internal disputes and to enforce their criminal will. Such activities are intolerable in any civilised and law-abiding society. The government remains determined, despite the recent blocking by the Legislative Council of the Criminal Law (Sentencing) (Sentencing Considerations) Bill 2011, to continue its ongoing efforts against the organised criminal gangs involved in serious crime.

These criminal gangs consider that they are above the reach of the law, and conventional law enforcement is often ineffectual in dealing with them because of the strong fears that their thuggery engenders and the resulting unwillingness of many witnesses to testify or assist the authorities in the investigation and prosecution of such criminals. This bill is an integral part of the comprehensive series of linked measures that the government is taking to help tackle the very real problems posed by organised criminal gangs involved in serious crime. The bill, in particular, supports and complements the operation of the Statutes Amendment (Serious and Organised Crime) Act 2012. The bill reintroduces part of the Criminal Law (Sentencing) (Sentencing Considerations) Bill 2011. I seek leave to insert the remainder of the second reading explanation in Hansard without my reading it.

Leave granted.

The present Bill is intended to challenge any notion of 'honour amongst thieves'. The Bill confers the power on a court grant an 'at large' discount in sentence to an offender in return for that offender's valuable co-operation with the authorities. The Bill encourages offenders involved in serious and organised crime to turn on their criminal associates and to assist the authorities in the investigation and prosecution of other offenders and/or other crimes. Such offenders are often known as 'supergrasses'. Such co-operation can, and in fact does, play an important role in combating crime, especially in bringing to justice the leaders of organised gangs involved in serious crime.

The policy of the Bill is deliberate and is not something revolutionary. For many years the courts have sought through substantial reductions in sentence where appropriate to discourage the notion of 'honour amongst thieves' (see R v Golding (1980) 24 SASR 161) and to encourage offenders to assist the authorities, especially in serious and organised crime. 'It would be to close one's eyes to reality', as Justices Deane and McHugh of the High Court observed in 1985 in R v Malvaso ((1985) 168 CLR 227, 239):

'to fail to recognize that in areas of organized crime in this country, particularly in relation to drug offences, the difficulties of obtaining admissible evidence are such that it is imperative, in the public interest, that there be a general perception that the courts will extend a degree of leniency, which would otherwise be quite unjustified, to those who assist in the exposure and prosecution of corrupt officials and hidden organizers and financiers by the provision of significant and reliable evidence…Any person who provides genuine information to the authorities about the workings of organized crime exposes himself to the danger of retributive violence. That danger can be aggravated within a prison environment.'

These observations are as telling now as they were 25 years ago. To successfully prosecute the pivotal figures involved in serious and organised crime, there is a very real need to encourage individuals who may very well be criminals themselves to help the authorities.

The President of the Queen's Bench Division in England in R v P [2007] EWCA Crim 2290 at [22] explained in strong terms, which are equally applicable to Australia (see R v Cartwright (1989) 17 NSWLR 243, 252), the strong public interest in favour of encouraging offenders to come forward and co-operate fully with the authorities, especially to the 'Mr Bigs' of the underworld:

'There has never been, and never will be, much enthusiasm about a process by which criminals receive lower sentences than they otherwise would deserve because they have informed on or given evidence against those who participated in the same or linked crimes, or in relation to crimes in which they had no personal involvement, but about which they had provided useful information to the investigating authorities. However, like the process which provides for a reduced sentence following a guilty plea, this is a longstanding and entirely pragmatic convention. The stark reality is that without it major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would escape justice. Moreover, the very existence of this process, and the risk that an individual for his own selfish motives may provide incriminating evidence, provides something of a check against the belief, deliberately fostered to increase their power, that gangs of criminals, and in particular the leaders of such gangs are untouchable and beyond the reach of justice. The greatest disincentive to the provision of assistance to the authorities is an understandable fear of consequent reprisals. Those who do assist the prosecution are liable to violent ill-treatment by fellow prisoners generally, but quite apart from the inevitable pressures on them while they are serving their sentences, the stark reality is that who betray major criminals face torture and execution. The solitary incentive to encourage co-operation is provided by a reduced sentence, and the common law and now statute, have accepted that this is a price worth paying to achieve the overwhelming and recurring public interest that major criminals, in particular, should be caught and prosecuted to conviction.'

The Bill builds on and promotes this important policy. It sends a strong signal to criminals involved in serious and organised crime to assist the authorities. The Bill does not cover normal or routine co-operation and is confined to exceptional co-operation or undertakings of exceptional co-operation given prior to sentence. The Bill duplicates the procedure in the Statutes Amendment (Serious and Organised Crime) Act 2012, supported by the Opposition, which allows an offender who has already been sentenced to be resentenced for exceptional co-operation in the context of serious and organised crime.

The Bill is not, as some have claimed, a 'get out of jail free' card for offenders who will somehow escape unpunished if they co-operate with the authorities. This is simply not the case. Offenders who provide exceptional co-operation to the authorities in the investigation and prosecution of serious and organised crime will still receive what the court regards in the particular case as the appropriate punishment balancing the nature and gravity of the crime that they have committed with the benefit and nature of their co-operation with the authorities. It is worthy of note that, should the authorities wish to allow an offender to escape unpunished in return for assisting the authorities, the Director of Public Prosecutions already has a power to grant a complete indemnity from prosecution in return for helping the authorities. The procedure in the Bill of allowing the court the discretion to grant an appropriate discount in sentence for exceptional co-operation is preferable to the offender been granted a complete indemnity from prosecution.

The Statutes Amendment (Serious and Organised Crime) Act 2012 introduces a new procedure to allow offenders who have already been sentenced to seek re-sentence after their exceptional co-operation. The court on re-sentence may reduce their sentence by an 'at large' figure on account of their exceptional co-operation. It would be anomalous to have the statutory scheme in the Statutes Amendment (Serious and Organised Crime) Act 2012 for sentencing supergrasses who have provided exceptional cooperation after sentence but to leave it to the common law to regulate exceptional co-operation by a supergrass before sentence. The law, out of consistency, should provide the same procedure for the sentencing of supergrasses who have co-operated with the authorities, whether such co-operation was extended before or after sentence. It is very difficult to see how one can logically oppose this procedure for exceptional co-operation before sentence but support it in respect of exceptional co-operation after sentence.

The Bill is confined to discounts for 'exceptional' co-operation in the context of serious and organised crime by what can be termed as 'supergrasses'. It will arise in only narrow and specific circumstances. The Bill draws on the definition of serious and organised crime in Statutes Amendment (Serious and Organised Crime) Act 2012.The Bill does not apply to co-operation with the authorities that can be regarded as routine, normal or standard.

The Bill is intended to cover the field for the discount to be conferred upon a supergrass for both co-operation with the authorities and a plea of guilty, if there is one. If the supergrass pleads guilty, the discount will cover both the plea of guilty and the co-operation. If the supergrass pleads not guilty and is convicted, the discount will cover only the co-operation. Other mitigating factors such as normal co-operation do not fall within the Bill and will be left to the common law and s 10 of the Criminal Law(Sentencing) Act 1988 to regulate. The common law provides an existing range of about 20-40 or 50% for co-operation with the authorities. The Bill will allow a court to go beyond this to those offenders who will fall within the category of a true supergrass.

The Bill applies to supergrasses who have provided exceptional co-operation, whether they pleaded guilty or were convicted at trial. In practice, however, it is expected that most supergrasses who will fall within the Bill will have pleaded guilty to the offences that they face. It is inappropriate to fetter the court's discretion and confine the Bill to only those offenders who plead guilty. It may be appropriate in rare circumstances for a court to confer a discount under the Bill upon a supergrass who provides exceptional co-operation but did not plead guilty. However, there is a world of difference between a cynical supergrass who pleads not guilty and only agrees to act as a supergrass and help the authorities after he or she has been convicted at trial and realises that he or she now has nothing to lose with the frank supergrass who pleads guilty at an early stage and fully co-operates with the authorities from the earliest possible opportunity. There are real benefits in an early and timely plea of guilty. In deciding whether to grant an 'at large' discount, the court must have regard, amongst other factors, to whether the defendant pleaded guilty, and the timing and circumstances of any guilty plea.

The 'at large' discount in sentence for co-operation must reflect circumstances which are truly exceptional. The court, in its discretion, must have regard to the nature of the case, the value and benefit of the co-operation and/or the testimony, the nature and degree of the risk to the defendant and his or her family and the potential violent and other consequences to him or her in prison and any plea of guilty and the timing and circumstances of such a plea. In brief, the overall circumstances of the case must be such as to justify a departure in the public interest from the ordinary common law discount for normal co-operation of 20 to 50%.

The Bill has been the subject of much thought. It is designed to be narrow in its scope and application. The Bill is confined to offenders who give valuable information and assistance in the investigation and prosecution of serious and organised crime. These will be persons who, at considerable risk to themselves and their families, have provided valuable assistance to the authorities, generally through testifying, that has enabled major criminals involved in crimes of the utmost gravity to be brought to justice. It is likely that, without the assistance of these persons, these criminals would not have been able to be brought to justice. The Bill is designed to encourage exceptional co-operation from those involved in, or with knowledge of, serious and organised crime. It is necessary that there is a clear distinction between the supergrass who provides valuable and exceptional co-operation to the authorities in the context of serious and organised crime as defined in the Bill, and the offender, who in contrast provides merely standard or normal co-operation. In the former case, it may be appropriate for the court to exceed the normal common law range of 20-50% reduction in sentence for co-operation. In the later case, it would be inappropriate for the offender to receive excessive and unjustifiable discounts in sentence in return for such standard or normal co-operation. Hence the vital distinction in the Bill between 'normal' co-operation where the common law continues to apply and 'exceptional' co-operation where the possible discount is at large and could not exceed the normal range at common law of 20-40 or 50%.

The Bill includes a specific provision allowing an offender to be re-sentenced if he or she promises to co-operate with the authorities and is sentenced on that basis but later fails to satisfactorily honour his or her side of the arrangement. He or she should be re-sentenced but on the basis of the sentence that they would have received but for the original deduction for the promise of co-operation with the authorities.

If the defendant has pleaded guilty and falls within the definition of exceptional co-operation under the Bill, he or she should not receive one discount for the plea of guilty and another for the exceptional co-operation and then both amounts are arbitrarily combined together to produce one aggregate discount. Such an approach is artificial, and could lead to excessive discounts in practice. When such a combination of a plea of guilty and exceptional co-operation exists, it should not be the practice to attempt to identify a specific reduction for each of the factors. There should be no attempt to isolate a reduction for the fact of the plea and a separate reduction for assistance to authorities. Rather, the preferred approach is confer one discount that reflects both the plea of guilty and the co-operation with the authorities. This accords with the views expressed by the Court of Criminal Appeal in DPP (Commonwealth) v AB [2006] SASC 84.

It is not intended that the Bill will affect the general way in which the criminal courts go about formulating the correct sentence applicable in any given case and, apart from exceptional co-operation and any guilty plea, does not undermine the principle of 'instinctive synthesis' that the High Court favours.

The Bill serves an important purpose in the Government's ongoing integrated efforts against serious and organised crime.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal

Part 2—Amendment of Criminal Law (Sentencing) Act 1988

4—Insertion of section 10A

The following section is to be inserted after section 10 of the principal Act.

10A—Reduction of sentences for cooperation etc with law enforcement agency

New section 10A provides that a court may declare a defendant to be a defendant to whom this new section applies if satisfied that the defendant has cooperated or undertaken to cooperate with a law enforcement agency and the cooperation—

relates directly to combating serious and organised criminal activity; and

is provided in exceptional circumstances; and

contributes significantly to the public interest.

In determining sentence for an offence or offences to which a defendant has pleaded guilty or in respect of which a defendant has been found guilty, the court may, if the defendant is the subject of such a declaration, reduce the sentence that it would otherwise have imposed by such percentage as the court thinks appropriate in the circumstances.

In determining the percentage by which a sentence is to be reduced under this section, the court must have regard to such of the following as may be relevant:

if the defendant has pleaded guilty to the offence or offences—that fact and the circumstances of the plea;

the nature and extent of the defendant's cooperation or undertaking;

the timeliness of the cooperation or undertaking;

the truthfulness, completeness and reliability of any information or evidence provided by the defendant;

the evaluation (if any) by the authorities of the significance and usefulness of the defendant's cooperation or undertaking;

any benefit that the defendant has gained or is likely to gain by reason of the cooperation or undertaking;

the degree to which the safety of the defendant (or some other person) has been put at risk of violent retribution as a result of the defendant's cooperation or undertaking;

whether the cooperation or undertaking concerns an offence for which the defendant is being sentenced or some other offence, whether related or unrelated (and, if related, whether the offence forms part of a criminal enterprise);

whether, as a consequence of the defendant's cooperation or undertaking, the defendant would be likely to suffer violent retribution while serving any term of imprisonment, or be compelled to serve any such term in particularly severe conditions;

the nature of any steps that would be likely to be necessary to protect the defendant on his or her release from prison;

the likelihood that the defendant will commit further offences,

and may have regard to any other factor or principle the court thinks relevant.

Nothing in this new section affects the operation of sections 15, 16 and 17.

Serious and organised criminal activity is defined for the purposes of this new section to include any activity that may constitute a serious and organised crime offence within the meaning of the Criminal Law Consolidation Act 1935.

5—Substitution of heading to Part 2 Division 6

The proposed new heading is 'Re-sentencing'.

6—Insertion of section 29DA

This new section is proposed to be inserted immediately following the heading to Part 2 Division 6.

29DA—Re-sentencing for failure to cooperate in accordance with undertaking under section 10A

Proposed section 29DA applies if—

(a) a person is currently serving a sentence of imprisonment for an offence or offences that was reduced by the sentencing court under section 10A (the relevant sentence); and

(b) the person has failed to cooperate with a law enforcement agency in accordance with the terms of an undertaking given by the person under that section.

The Director of Public Prosecutions may, with the permission of the court that imposed the relevant sentence on the person, apply to the court to have the sentence quashed and a new sentence imposed, taking into account the person's failure to cooperate with the law enforcement agency in accordance with the terms of an undertaking given by the person under section 10A.

The Director of Public Prosecutions, the chief officer of the law enforcement agency and the person will be parties to the proceedings on the application.

Nothing in this proposed section authorises a court to impose a new sentence that would exceed the sentence that would, but for the reduction given under section 10A, have been imposed by the sentencing court under that section.

Schedule 1—Transitional provision

1—Transitional provision

This clause makes it clear that the Criminal Law (Sentencing) Act 1988, as amended by this measure, applies in relation to proceedings relating to an offence instituted after the commencement of this measure, regardless of when the offence occurred.

Debate adjourned on motion of Mr Griffiths.