CRIMINAL LAW (SENTENCING) (SUSPENDED SENTENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 June 2013.)

The DEPUTY SPEAKER: The Deputy Leader of the Opposition, she hardly misses a trick.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:36): I rise to contribute to the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill 2013 debate, and indicate that the opposition will be supporting this bill. I will be the lead and, I expect, only speaker on this matter.

The DEPUTY SPEAKER: You have unlimited time.

Ms CHAPMAN: Don't encourage me. This is a bill which follows the Australian Labor Party's commitment at the 2010 election in which they stated:

A re-elected Rann government will bring to an end...some offenders 'getting away with it lightly'...the option to suspend a term of imprisonment will be removed altogether for some repeat offenders.

Where an offender has already been on a suspended sentence within the three years preceding the commission of the offence that is the subject of sentencing, the offender will not be eligible to receive another wholly suspended sentence.

Tough words from the authors of that, including the premier of the day, who has since gone, and 3½ years later we are here with some annunciation of that promise. The Attorney-General followed through with this bill, tabling it here on 5 June. The current position under our Criminal Law Sentencing Act is that a sentencing court must determine whether good reasons exist in order to suspend an offender's sentence.

We have been advised that in the early 2000s there was a trend for the courts to interpret 'good reasons' as 'exceptional circumstances'. In the case of R v Fowler the Supreme Court explained the difference between 'good reason' and 'exceptional circumstances' (R v Fowler [2006] SASC 18). The court concluded that the 'good reason' test for the purposes of deciding whether to suspend a sentence:

...requires the sentencing judge to consider all of the circumstances of the instant case and make an assessment as to whether those circumstances give rise to good reason to suspend the sentence.

On the other hand, the 'exceptional circumstances' test implies that the sentencing judge ought to compare the circumstances of the instant case with other cases and determine whether there are aspects of the instant case that set it apart from the other cases and thereby justify an exercise of the discretion to suspend.

The statute required good reasons so that a lower threshold test was applied. The exceptional circumstances test has been used in relation to suspended sentences for serious firearms offences. We are advised that the bill will effectively affirm the earlier trend in the courts to require an exceptional circumstances test when deciding whether to suspend the sentence of imprisonment, but only in relation to a limited range of offenders. They are: repeat violent offence and serious and organised crime offence.

In the case of the former, a repeat violent offender is one who has committed a designated range of serious violent offences prescribed in the bill within three years of being sentenced to a suspended sentence for another designated offence. The three-year period for them begins to run from the date the first suspended sentence was imposed and the 'relevant date' as to the second or subsequent offences is the date of the offence, not conviction or sentence. This offence can include one committed as a youth.

I think that is an important closing of the gap in the sense of the application of what has happened in the past—people constantly adjourning cases to get outside of the relevant periods. Of the latter, which is the serious and organised crime offence, these are prescribed by the bill and go beyond the offences in the serious and organised crime legislation to include offences against the Controlled Substances Act 1984, involving the trafficking of a large commercial quantity of a controlled drug whether or not aggravated by the above circumstances.

Again, whether somebody is in an organised crime gang or whether they are acting alone, we all agree that trafficking of drugs is a very serious offence and the opposition understands why this subsequent aspect of covering persons under that act is also to be included. It is noted in a budget bid from November 2012 concerning the expected costs of the scheme that:

...this reform will result in an estimated maximum of 34 prisoners per day in the prison system immediately following the introduction of the new law, evening out to 18-27 extra prisoners per day over time. Extra capacity with the prison system will be required to allow for the expected increase in prisoners.

Accordingly, the bid to cover this extra capacity that would be needed to be invested for 30 additional prison beds was $9.8 million. The government has provided a briefing on this bill and we thank it for that. It was claimed there that there has been sufficient provision in the budget to cover this. I would hope that in some response from the Attorney—I do not necessarily want to go into committee on it—he is able to provide some reassurance in that regard.

For the record, the opposition is interested in looking at some other areas of reform in respect of suspended sentencing and some of the problems that are highlighted by this bill. It is a somewhat cherrypicking response to some of these issues, but rather than traverse these today, we will look at a much broader reform of suspended sentences rather than identifying these aspects and what may ultimately result in another problem being born, especially if there are inadequate resources provided. I look forward to hearing the Attorney's reassurance. The opposition supports the bill.

Mr VAN HOLST PELLEKAAN (Stuart) (16:43): I just wanted to touch on something that the member for Bragg talked about with regard to prison capacity. Could the minister, in his remarks or during committee if that is more appropriate, confirm what calculations the government has done with regard to prison capacity because we all know that it is very tight already. I believe it is 34 extra beds that will be required for this program if it is passed. Could you advise the house not only where the funding and where the 34 extra beds will come from but also the government's calculations with regard to prison capacity and when it will be reached if this legislation is passed?

The Hon. R.B. SUCH (Fisher) (16:44): I just make the general point that I do not believe that we should restrain judges and magistrates in their role. For example, I am against politicians or Executive Council interfering with the recommendations of the Parole Board—and that is a different issue to today. But I just make the general point that there is not much point in having judges or magistrates if you are going to clip their wings all the time and put the handcuffs on them when it comes to the decisions they make. So I have some concern about restricting them. I know this bill does not totally take away their discretion in respect of suspending a sentence, but I think we have to be careful because there is a bit of a climate of 'lock 'em up forever'—all of this sort of stuff—and it does not work.

I know you have to lock up people who are an ongoing threat to the community and I do not have a problem with that. I think we have to be careful we do not get into what is, in effect, a law and order auction where we see who can outdo the other in terms of the harshest penalties, the longest sentences and less consideration by the Parole Board and all of that sort of thing. I think it is a very dangerous slippery slope to be engaged in.

So I just use those words as a caution. I think we have to be very careful—particularly in the lead-up to an election—that we do not get the government or the opposition (or anyone else) engaging in this sort of auction, if you like, to see who can be the toughest or who can be the harshest. We know from history by the way the convicts were treated, that even if you whip them and hang them, and whatever, it does not do a lot to alter the crime rate. People will still commit crimes, unless you tackle the fundamental underlying causes. So I just make that brief comment.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:47): I thank everyone who has contributed and I thank everyone, in particular, for the succinct nature of their remarks. Can I say that this is another example of where the community has actually spoken quite loudly. The community has constantly said, in so many ways—and I am sure all of us have heard it, and I know the member for Stuart would have heard it in his tours around the state—'Look, we have the good men and women of SAPOL out there catching these characters; they go to court and they are out; they reoffend, they go to court and they are out again.' Some of this is urban myth—that is my first point. Some of it refers to people who I know are committing a criminal offence but they do not pose a serious risk to other people's safety or lives.

For example, a person who is a repeat shop stealer is not somebody whose behaviour I condone, but the impact on the community of having somebody who has pinched a pair of pants from David Jones and who goes back out on the street and then pinches another pair of pants—I know David Jones do not like it, and I am not saying it is good—but there is an ocean of difference between that and somebody who has belted somebody within an inch of their life and then within a few weeks goes to court, is charged, goes through the system and comes out on some sort of conditional licence or conditional release and then they do it again. That is a completely different kettle of fish. I do understand why the public get concerned about that and I do understand why the police get concerned about that.

So this legislation is intended to target those people whose behaviour is so obnoxious and so dangerous to other people that they have demonstrated by their repeat offending that they cannot be trusted to get their act together and behave and they are not being put in gaol, member for Fisher, so much to actually necessarily reform them. These people are at a point where they are being put in gaol to stop them hurting somebody else, and that is the point.

The next point is, the member for Fisher said that we are getting rid of the discretion of the court. That is not true. What we are doing is we are saying to the court that the bar is higher for these repeat offenders; these people who have demonstrated they just do not want to get with the program. For these people, we are saying 'a good reason' which, members might be interested to know, has basically been defined by the courts—and I do not mean to be frivolous about this—as basically meaning any reason that stands up to any sort of—

Ms Chapman interjecting:

The Hon. J.R. RAU: A good reason, for example, might be, 'I'm a carer. I've got a relative at home that I look after, and it's a good reason I don't go to gaol because it would inconvenience the relative.' That is an example of what might be a good reason. That is all well and good and I am comfortable about that and this legislation is comfortable with that being the test for the first time the person goes out and commits one of these offences; but, by the second or third time they have committed one of these offences saying, 'I've got to look after mum,' or, 'I've got five cats and a budgerigar. What's going to happen to them?', we are saying at that point the test is not whether they have got a good reason. The cats and the budgerigar do not pass muster any more. The test is whether there are exceptional circumstances that mean that person should not go to gaol, but it is still in the hands of the court.

Member for Fisher, do I expect the court to find it harder to let these people out? Yes, I do. We make no apology for that, because that is the whole point of this. This is intended to send a very clear message to these repeat offenders. Bear in mind that they are not first time offenders and not even second time offenders. They are repeat offenders—people who have demonstrated a pattern of behaviour which is dangerous to fellow citizens.

As to the question about resource implications, I am advised the situation is this. It was estimated at one point that there would be a peak of 37 additional prisoners within 14 months followed by a decline to around 10 to 20 additional prisoners, and that estimation assumes no deterrent effect whatsoever. It assumes no modification in anyone's behaviour: it assumes that everybody who in the past has continued statistically to behave like this continues to keep statistically behaving like this, and that nobody thinks, 'Do you know what? It's not worth my punching this bloke in the head tonight because I'm going to wind up in gaol.' It assumes nobody is ever going to mend their ways, at all.

I am also advised that the position that Corrections have taken on this is that there will be, from their point of view, a marginal acceleration of demand for additional capacity in the prison system. That is the way they explain it. I have received no information from Corrections to say they cannot manage this. I have to say that part of the reason this measure is so targeted is that we did wish to be responsible in terms of not only just locking everybody up, which would be unreasonable for a whole bunch of reasons, but also not to put unreasonable strains on Corrections. We were very careful in selecting the group of individuals that we wanted to see locked up.

As I said, the summary of Corrections' position was that these measures, targeted as they are, would result in a marginal acceleration of demand for additional capacity in the prison system. So there is already an incremental increase in demand for capacity in the prison system and this would result in a marginal step-up of that progress.

It was clear, when this matter was being discussed, and it was discussed for a while, that ultimately Corrections were able to accommodate this. But I do say this to the opposition, because the member for Bragg did suggest that there may be something about to come out from underneath the cloak. If the member for Bragg and her colleagues decide that they wish to broaden the category of people who might be caught in this type of regime, the point about Corrections is not an insignificant point because, if you did decide that every single person who was a multiple offender, for every kind of offence, would not get repeat suspended sentences—

Ms Chapman: Nobody suggested that.

The Hon. J.R. RAU: No; I am not putting words in your mouth, I am just saying that, hypothetically, if one did, that would have an impact on corrections, a significant impact on corrections. That is why this bill is targeted as it is. We have tried to balance, on the one hand, identifying these people who are a menace to other members of the public and who the police have to catch once, twice or three times, and who have committed very serious offences. We want to isolate that group of people and say, 'Right, you mob have been taking advantage of the fact that the law has been interpreted in a certain way. For you people, once you get yourself into that category, the law is going to be different when they consider what they do with you.'

That is what we are doing and, quite frankly, I think that is what we should be doing, and I think the community thinks that too. I think the community will be very appreciative indeed that the opposition is supporting this measure because it is good for the community to see that the parliament agrees on important things, and we all agree that protecting the community from these violent and irresponsible people is one of the important things that we are here to do. So, I thank the opposition for its support.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Industrial Relations, Minister for Business Services and Consumers) (16:56): I move:

That this bill be now read a third time.

Bill read a third time and passed.