CRIMINAL LAW (SENTENCING) (GUILTY PLEAS) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council's amendments.

(Continued from 15 November 2012.)

The Hon. A. KOUTSANTONIS: I move:

That the Legislative Council's amendments be agreed to.

Ms CHAPMAN: I indicate that the opposition will be supporting the amendments, but this bill does require some comment. The history of this legislation is that some years ago the government, with judicial support, wanted to develop some amendments to the functioning of the criminal justice system to try to reduce the demand and delay in the criminal courts' process. Although there had been a longstanding common law opportunity for judges to grant a discount for sentences of criminals when they pleaded guilty, on recommendations that were made after a review, the government took the view that codifying that into a system that identifies the specific maximum discounts available would be beneficial and would have the effect of remedying some of the court delays and the process.

This legislation has had a long gestation. Aspects of the original bill have now been divided into two bills. This bill comes back to us with some amendments and the other bill in respect of sentencing, otherwise known as the 'supergrass bill', is still wallowing in discontent. There are two aspects of the amendments that I wish to comment on. The first is that the government did not see fit to support the retention in the act of the obligation on the court to explain a sentence to a defendant in simple language. We remain concerned that, even with these amendments, without that obligation in the act for the judges to explain that, the potency of the effect of this new reform is lost.

In particular, if the defendant acts in ignorance and is not aware of the opportunity for them to enter a plea early and have some benefit from it, then that option may not be taken up. So, it was considered appropriate that the explanation of the legal effect and obligations of the sentence were appropriate to be identified by defence counsel and/or the judge. That is the first aspect that we think weakens the effect of these two amendments and the overall bill.

The other aspect that I wish to comment on is that the opposition have consistently said that the 40 per cent maximum sentence discount was too high. We have consistently said that 25 per cent would be better and that there is a process by which, if a court were to determine that a discount was proposed at 40 per cent, that would be reduced to 25 per cent. If the discount considered was 30 per cent then, under our proposal, it would be reduced to 15 per cent, etc., culminating in a final 10 per cent discount that could still be offered at the door of the court before trial. The government has consistently rejected this.

In accepting these amendments, we are very disappointed that the government has taken this view. Not only is it inconsistent with the Western Australian position where we are way out of sync but it also raises this question about whether the government is actually serious about being tough on law and order. It is one thing to come in here over and over again and ramp up the sentences and on the other hand escalate the discounts available to criminals. It is like, as was described in another place, driving a car with one foot on the accelerator and one foot on the brake at the same time. It does not actually resolve the problem.

So we are sending a message to criminals, firstly, that if you commit crime in South Australia, as distinct from in Western Australia, you have a better chance of getting off in South Australia with a higher discount. That is the first message we send them. I hope that does not encourage them all to come across the border and think it is better for them to commit crime in South Australia. On the other hand, we have the Attorney-General regularly going out to say that we are the government that is tough on law and order.

Last Friday, I attended a professional development lecture, which is obligatory for legal practitioners in South Australia to retain their practising certificate. Interestingly, it was on sentencing, and Justice Geoff Muecke, who is probably well known to a number of members here, delivered the lecture. It was on Friday afternoon. It was not handsomely patronised, I might say, probably because the cricket was on or something. In any event, I attended, and I thought that he made a most interesting observation.

Of course, he repeated what is commonly known, I think, even in this house, which is that in the general public, they often take the view that sentences are light, that somebody has got away with a bag of lollies, and that judges somehow live in a bubble or that they are not in the real world. They think that, even though in here we place upper limits on sentencing, judges all too frequently let people off too lightly.

That is a view that is commonly held until the average person in the public actually sits in on a trial or sits as a jury member or has a member of their own family or a friend who is actually caught up in the web of criminal activity. Then, it becomes a little more clear to them—in fact, crystal clear—all the different complications, all the construction, all the circumstances that a judge needs to take into account in sentencing to be able to produce a just result, not just a political outcome so that it avoids a story on the front page. It is a very careful deliberation, it is a complex determination and it is one which all too often I think judges are not given credit for.

I note that the former attorney was not at the lecture last week. He must not be keeping up his practising certificate. In any event, Justice Muecke made an observation about when he was a young judge and was conducting an arraignment. An arraignment meeting, for the benefit of members who do not know, is when all the barristers and litigants—the defendants—come along, sometimes representing themselves, and they identify to the court on arraignment day whether or not they are going to be pleading guilty, and then the court allocates various directions and orders for the processing of whether it is to go to trial or be referred to a superior court or whatever.

On this day the judge came into the arraignment court and viewed all the defendants and the legal practitioners. He looked around the courtroom and he thought to himself, 'I wonder where the criminals are.' It was a very telling statement of a new judge who had, in his own mind, this idea that criminals, somehow or another, were identified. I do not know whether he thought they had a red spot on them, that they all had to have tattoos or whatever. He looked around the courtroom, and he could not tell the difference between someone who was counsel, whether they were the solicitor representing or whether they were the defendant, because they were all the same.

The important aspect of that to remember, when we here are making decisions about legislation on sentencing, is that we understand that it is ordinary people who line up in the criminal courts to be dealt with. It is a rare circumstance where someone is charged—obviously at the highest level of felonies that are dealt with in superior courts—where in fact it could be said that the defendant was all bad. These people have come from broken homes, they have come from fractured backgrounds, circumstances which none of us would want to actually come from, and yet on many occasions I have thought it surprising that these people have got through life as well as they have without offending at an even greater level.

I remind members of the house that the opposition is keen to undertake and support reform that is going to be helpful in the management of cases that are clogging up our criminal courts. We are always happy to help with that, but understand that there has to be a balance. We think it is quite hypocritical of the government to be bleat about being tough on law and order and then to accept a reasonable compromise with respect to the maximum available discounting for sentencing. With that contribution, I indicate the opposition will be supporting the amendments.

The Hon. A. KOUTSANTONIS: I thank the member for her comments.

There being a disturbance in the Strangers' Gallery:

The ACTING CHAIR (Ms Bedford): Clear the gallery.

Motion carried.

The SPEAKER: I remind the cameraman in the gallery that that was not part of the proceedings of the parliament and you need to be very careful with the footage that may have been taken.