CRIMINAL LAW (SENTENCING) (NO CONVICTION ON ELECTION TO BE PROSECUTED) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 March 2012.)

Ms CHAPMAN (Bragg) (11:07): I rise to speak on the Criminal Law (Sentencing) (No Conviction on Election to be Prosecuted) Amendment Bill. This bill, again, had a precursor: in 2011, the member for Fisher introduced a similar bill and then again on 29 March this year tabled a bill in the same terms. Essentially, it seeks to ensure that a conviction is not recorded against an individual who elects to contest an expiable notice and is subsequently found guilty.

As the law currently stands, if a person believes they are innocent of an expiable offence and elects to be prosecuted, they may receive a recorded conviction if found guilty. On the other hand, an individual who expiates the notice in full only pays the fine and receives no conviction, regardless of their guilt. If a person elects to be prosecuted and is found guilty, a conviction will normally be recorded on the individual's police certificate and remain there until such time as it is considered spent.

As a matter of policy, the consequences of contesting an expiable offence through a trial in court should be greater than paying the fine prescribed on the notice because it costs the legal system time and the taxpayer money to allow a person to challenge offences in court. The option to expiate the notice at the earliest opportunity and not have a conviction recorded is analogous to the allowance made in criminal law sentencing for pleas of guilt. If an expiation notice is contested, a conviction may be recorded at the discretion of the magistrate pursuant to section 16 of the Criminal Law (Sentencing) Act 1988.

The Law Society has presented its view on this matter. We do not always agree with the Law Society's submissions, but in this instance, though, they have presented some persuasive matters for our consideration, and I hope, of course, that the government also appreciates the significance of this.

The substance of their objection is, firstly, that this proposal would undermine one of the principal objects, if not the principal object, of the Expiation of Offences Act 1996, which is to reduce the number of matters coming before the courts. Secondly, it runs counter to well-established sentencing principles that a conviction should be recorded unless there are special circumstances for not doing so. Thirdly, it inappropriately fetters the sentencing discretion of the court by creating a class of offences in respect of which a conviction may not be recorded. As far as the Society is aware, this has never been done in South Australia or the commonwealth.

That does not always make it a bad thing. Nevertheless, we could be the forerunner of legislation and then topple over and find that we are in the High Court. So, we need to get these things right and being out there and brandishing 'the first' does not necessarily mean that we get it right. Members only have to read the paper today or read the Totani case on legislation with respect to serious and organised crime. The fourth in principle reason is that it has no regard for a defendant who pleads not guilty. A guilty admission is usually an important consideration in determining whether to extend the leniency of a no-conviction order.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: The member for Croydon, as usual, makes some unhelpful contribution in his interjection to suggest it is good to know our position in relation to hoon driving. Let me be absolutely clear with respect to making sure that we get legislation right in this place. Even if we were to agree with the principles and proposals in this bill, it is important that proper scrutiny is made and attention given to legislation, in its preparation, to ensure that we do not have the costly outcome of not only going through court processes but the humiliation where the mover of a bill (usually the government) has egg all over their face as a result of presenting to the parliament a proposal in which it seeks that endorsement.

So, it is very important that we get that right. The biggest disappointment I have in reading the material over the past 24 hours with respect to the crushing of motor vehicles and the crushing of legislation that we have made, is that the government has not come out and immediately announced that it will bring these issues back into the parliament straight away and sort it out. That is the greatest disappointment, that it wants to prevaricate with all of its excuses, just as it did after the Totani case. In that case it waited well over a year before it got its act together to come back here and fix up legislation.

I am a great advocate of where the government sponsors, moves or supports legislation, where it has all the resources to go with that, the whole Crown Solicitor's Office, the Solicitor-General, a whole army of people to give it advice, that it makes sure that when we are moving to do legislation that we get it right. One thing that caught my attention yesterday was the introduction of legislation on filming in humiliating circumstances. We are going to be debating that so I will not make any comment on it, but it is very important that when we introduce legislation into this place and the government has the resources to make sure that we get it right, that we actually get it right and when we get it wrong that it does not fail to come in here and fix it up.

It is humiliating enough that the Chief Justice of the Supreme Court crushes this piece of legislation. The humiliation to the Attorney-General must keep him in his office cowering, but he, of course, comes after the previous attorney-general, who regularly got it wrong.

Mr SIBBONS (Mitchell) (11:14): The government opposes this bill. There is no rational connection between the process by which a case comes before the court and whether a conviction should be recorded. The Criminal Law (Sentencing) Act 1988, by section 16, gives the court a discretion not to record a conviction in a case where the defendant is found guilty but the court believes he or she is unlikely to re-offend and there is good reason not to record a conviction. The court can consider, for example, whether the defendant is of good character, whether the offence was trifling and any extenuating circumstances. This discretion is available only where the court does not propose to gaol the defendant because, if the offence is serious enough to merit a gaol term, a conviction is appropriate.

The government sees no need for a change in the law at this point. The question on whether a conviction should be recorded is properly one for the sentencing court. It needs to be considered case by case, having regard to the particular offence and the particular defendant. It is not a matter on which the parliament ought to make a blanket rule. It should not be assumed that all offences are trivial; for example, a food business that sells unsafe food to the public can, if served with a notice, expiate the offence, but that does not mean that it is a slight offence. The maximum penalty for a body corporate is $250,000, in recognition of the harm that could occur and the need to deter this behaviour. A conviction may well be appropriate if the offence is prosecuted.

The argument in support of this bill appears to be that it is unfair that, if a person expiates an offence, no conviction arises but that, if they are prosecuted and found guilty, they may be convicted. The government disagrees. It is inherent in the scheme of expiation of offences that a person who expiates an alleged offence is not admitting guilt; rather, they are making a choice that they would prefer to pay a fee and have the matter proceed no further rather than to have the allegations tested in a court. It would be wrong of the law to treat such a person as guilty. They may not be; nothing has been proven and, accordingly, no conviction can arise.

It is quite different if a person is prosecuted and found guilty. In that case, a court of law has been persuaded beyond reasonable doubt that the person has committed an offence. A conviction may well be appropriate, depending on the circumstances, such as the person's record and the gravity of the offence, which the court is best placed to assess. So, in this case, the government opposes the bill.

The Hon. R.B. SUCH (Fisher) (11:17): Once again, I can read the wind. The reason I raise this matter is that it is based on my own experience, and life is a good teacher. I do not think many people would challenge an expiation. You would have to be stupid to challenge an expiation unless you were pretty confident that you did not do it, believe that you did not do it and know that you did not do it. That is the reason I challenged it, but what happens in the court process is that some of these things can go belly up.

Given that someone who admits, in effect, that they did it and pays the expiation and then that remains a confidential secret, I think there is a double standard. I heard what the member for Mitchell said; that is, a magistrate has some discretion. In my case, I have never had an accident or a speeding fine in my life. It did not help me; the magistrate still gave me a conviction, so now I have a police record.

The point is that the argument that the magistrate is going to say, 'You have never offended in anything—no traffic offences, never a speeding fine, either by a camera or any other device or in any way,' did not translate into action in my case. So you end up with a conviction—and a conviction, whether it is for a traffic offence or anything else, the law calls it a conviction and you get a police record—and I think the way it is automatic at the base is very unfair. To say that the magistrate will suspend it or not record a conviction is relying on a hope and a prayer, because it does not necessarily happen. That is what I was trying to address; that is, what I think is an inherent unfairness.

The public and the people I have spoken to see the unfairness if someone challenges an expiation. I heard the member for Mitchell talk about food poisoning, which I did not have in mind. My concern probably this needs to be more precisely tailored. What I was trying to do was to bring in an element of what I think is fairness. People who have broken the law know they have and they pay the expiation, which, in my view, is an admission of guilt; and I know that lawyers will argue about that. People pay it either because they cannot be bothered challenging or they did do it. If you go to court you have incredible costs. You have the legal costs if you get a lawyer—and sometimes you are better off not to have a lawyer, in my experience.

However, you have the court costs. If you lose you get the fine, and then, on top of that, you get a criminal conviction and a police record. The chance that the magistrate might be in a special mood does not necessarily follow, and then you are left high and dry. I was trying to correct what I think is not an automatic injustice but a frequent injustice in our system, which deters people from challenging an expiation.

What we have with the expiation system is really a guaranteed revenue raiser for government, because people cannot realistically challenge it. I had by reputation the best traffic lawyer in Adelaide, an ex-police prosecutor who knew the mathematics and knew all the ins and outs. You can go to all that trouble. I genuinely was not speeding.

In my case the police officer said that at 'half a kilometre' with his naked eye he could tell what speed I was doing. Well, anyone who believes in that believes in fairies. The magistrate just said, 'He's been a constable for 30 years, I accept what he says.' I can see the fate of this bill, so I put it to the vote.

Second reading negatived.