Statutes Amendment (Recidivist and Repeat Offenders) Bill

Standing Orders Suspension

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:01): I move:

That standing orders be and remain so far suspended as to enable the introduction of a bill without notice forthwith and passage through all stages without delay.

The SPEAKER: An absolute majority not being present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:03): Obtained leave and introduced a bill for an act to amend the Bail Act 1985, the Criminal Law (High Risk Offenders) Act 2015, the Criminal Law (Sentencing) Act 1988 and the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:03): I move:

That this bill be now read a second time

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

In the criminal justice system in South Australia there are two existing regimes that provide for the extended supervision and the continued detention of offenders beyond their existing sentence. This Bill extends these regimes to enhance community safety.

The Bill also expands the category of offenders for whom there is a presumption against release on bail.

The Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017 builds upon existing provisions in the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) concerning both youth and adult repeat offenders.

By force of section 20B(a1) of the Sentencing Act, a person will be taken to be a serious repeat offender (SRO) if they have been convicted of committing, on at least three separate occasions, any of a number of specified serious offences. Section 20B(1) then continues to provide that a person is liable to be declared a SRO if they have been convicted of committing any of a number of other serious offences on at least two or three separate occasions, depending on the offence type.

Once a person is either taken to be, or declared to be, a SRO, the sentencing court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence and any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.

However, the sentencing court retains a discretion to declare that these provisions do not apply if the offender satisfies the court, by evidence given on oath, that his or her personal circumstances are so exceptional as to outweigh the primary policy of the criminal law of emphasising public safety and it is, in all the circumstances, not appropriate that he or she be sentenced as a serious repeat offender.

Under section 20C of the Sentencing Act, a youth is liable to be declared a recidivist young offender (RYO) if the youth has been convicted of committing, on at least two or three separate occasions (depending on the offence type) any of a number of specified serious offences.

If a youth is declared a RYO, then the sentencing court is not bound to ensure that the sentence it imposes for the offence is proportional to the offence (but, in the case of the Youth Court, the limitations relating to a sentence of detention under section 23 of the Young Offenders Act 1993 apply to the sentence that may be imposed by the Youth Court on the RYO). In addition, any non-parole period fixed in relation to the sentence must be at least four-fifths the length of the sentence.

Under the Bill, new consequences will flow from being a SRO or a RYO under the Sentencing Act, the Criminal Law (High Risk Offenders) Act 2015 (the HRO Act) and the Bail Act 1985 (SA) (the Bail Act).

Part 2 Division 3 (including section 23, 23A and 24) of the Sentencing Act establishes a regime whereby adults (and youths sentenced as adults) who are convicted of, and/or sentenced for, specific serious sexual offences (we will refer to these offenders as serious repeat sexual offenders) can be the subject of an order to be detained indefinitely, on the basis that they are incapable of controlling, or unwilling to control, his or her sexual instincts. This is referred to as a detention order.

The same regime also provides for a consequent release on licence (with conditions) and for applications to be made for the detention order to be discharged.

Section 23 of the Sentencing Act provides that:

at the time of sentencing the prosecution can apply to the Supreme Court for a detention order against the serious repeat sexual offender;

the Attorney-General may also apply to the Supreme Court for a detention order against a serious repeat sexual offender, whilst they remain in prison;

the paramount consideration of the Supreme Court in determining whether to make an order that the serious repeat sexual offender be detained in custody until further order must be the safety of the community; and

before making the order, the Supreme Court must direct that at least two legally qualified medical practitioners inquire into the mental condition of the serious repeat sexual offender and report to the Court on whether they are incapable of controlling, or unwilling to control, his or her sexual instincts.

Under the Bill, section 23 is expanded to apply to RYOs and SROs (referred to in the Bill as prescribed offenders).

The Bill provides that, before making any order under section 23 concerning a SRO or a RYO, the Supreme Court must direct that at least two legally qualified medical practitioners inquire into the mental condition of the RYO or SRO and report to the Court on whether they are incapable of controlling, or unwilling to control, their sexual instincts or violent impulses.

In addition, section 23 does not currently allow the Supreme Court to make interim orders, so the Bill creates a scheme whereby an interim order can be made detaining the offenders who are the subject of an application under section 23. The Bill also precludes the release of the offender (for example, the release of an adult offender on parole) whilst the section 23 application is being determined.

In all cases, the paramount consideration for the Supreme Court in making an order for an offenders continued detention is, and will continue to be, the safety of the community.

Once an offender is the subject of a detention order made under section 23, sections 23A and 24 of the Sentencing Act allow for a conditional release on licence and also for the detention order to be discharged. The Bill amends these provisions to also apply to RYOs and SROs who are made the subject of a detention order.

The Bill also amends the HRO Act.

The HRO Act provides a regime whereby an application can be made for the extended supervision of high risk offenders (both violent and sexual offenders) beyond the completion of their sentence, and their continued detention if an order is breached.

Under the HRO Act an application can be made to the Supreme Court by the Attorney-General, in the last 12 months of the offenders sentence (whether that is being served in custody or on parole) for an extended supervision order (ESO) which has conditions attached.

Under the HRO Act, before determining whether to make an ESO, the Supreme Court must direct that one or more legally qualified medical practitioners examine the offender and report to the Court on the results of the examination.

For a high risk serious sexual offender the medical practitioner undertakes, and reports on, an assessment of the likelihood of the respondent committing a further serious sexual offence.

For a high risk serious violent offender the medical practitioner undertakes, and reports on, an assessment of the likelihood of the respondent committing a further serious offence of violence.

Under the HRO Act, the Supreme Court can order that the offender be the subject of an ESO if satisfied that:

the respondent is a high risk offender; and

the respondent poses an appreciable risk to the safety of the community if not supervised under the order.

Again, the paramount consideration of the Supreme Court in determining whether to make an ESO must be the safety of the community.

If the offender breaches the conditions of their ESO, the matter is either dealt with by the Parole Board amending their conditions, or the Parole Board can elect to have the person appear before the Supreme Court and an application can be made for a continued detention order (CDO). The Attorney-General then becomes a party to the proceedings.

At the moment the HRO Act does not apply to youths and only applies to a certain category of high risk offender.

Under the Bill it is proposed that the HRO Act be extended to apply to SROs and RYOs, such that SROs and RYOs automatically fall under the definition of high risk offender.

This would allow the Attorney-General, during the last 12 months of the sentence of a RYO or a SRO, to lodge an application for an ESO.

Under the Bill, the Supreme Court must then direct that one or more legally qualified medical practitioners examine the RYO or SRO, and report to the Court on the results of the examination.

For both a RYO and SRO, under the Bill, the medical practitioner undertakes, and reports on, an assessment of the likelihood of the respondent committing a further offence of any kind that resulted in them becoming a SRO or RYO (as the case may be)

This ensures the medical report consider the types of offences that resulted in the offender being either declared a RYO or deemed or declared a SRO in the first place.

Under the Bill, the Supreme Court can order that the RYO or SRO be the subject of an ESO if satisfied that they pose an appreciable risk to the safety of the community if not supervised under the order.

Once a RYO or a SRO is the subject of an ESO, under the existing provisions of the HRO Act if the RYO or SRO breaches the conditions of their ESO, the matter is either dealt with:

in the case of adult, by the Parole Board amending their conditions or electing to have the person appear before the Supreme Court with an application being made for a CDO; or

in the case of a youth, by the Training Centre Review Board amending their conditions, or electing to have the person appear before the Supreme Court with an application being made for a CDO.

The Attorney-General then becomes a party to these proceedings.

Again, in all cases, the paramount consideration of the Supreme Court in determining whether to make an ESO will remain as the safety of the community.

The Bill also proposes an amendment to section 10AA of the Bail Act to introduce a presumption against bail for any RYO or SRO.

Lastly, the Bill amends the Sentencing Act 2017 (SA), which has not yet commenced. These amendments mirror the amendments to the Sentencing Act and ensures the new regime contained in the Bill that applies to RYOs and SROs will continue when the Sentencing Act 2017 (SA) commences.

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 Bail Act 1985

4—Amendment of section 10A—Presumption against bail in certain cases

This clause amends the Bail Act to provide a presumption against bail for recidivist young offenders and serious repeat offenders.

Part 3—Amendment of Criminal Law (High Risk Offenders) Act 2015

5—Amendment of section 3—Object of Act

This clause makes a consequential amendment to the objects provision.

6—Amendment of section 4—Interpretation

This clause inserts definitions for the purposes of the measure.

7—Amendment of section 5—Meaning of high risk offender

This clause includes serious repeat offenders who are serving a sentence of imprisonment and recidivist young offenders who are serving a sentence of detention in the definition of 'high risk offenders' for the purposes of applying the Act to them.

8—Amendment of section 6—Application of Act

This clause ensures that the Act applies in relation to a youth who is a recidivist young offender.

9—Insertion of section 6A

This clause prescribes modifications of the Act for the purposes of applying it to youths who are recidivist young offenders and allows the regulations to prescribe further modifications if necessary.

10—Amendment of section 7—Proceedings

This clause makes consequential changes to the requirements relating to proceedings.

11—Transitional provision

This is a transitional provision.

Part 4—Amendment of Criminal Law (Sentencing) Act 1988

12—Amendment of section 21—Application

This clause ensures that the Division can be applied to a recidivist young offender.

13—Amendment of section 23—Orders to protect safety of community

This clause amends the current section allowing orders for ongoing detention of offenders who are incapable of controlling, or are unwilling to control, sexual instincts by extending that section to recidivist young offenders and serious repeat offenders who are incapable of controlling, or are unwilling to control, sexual instincts or violent impulses.

14—Amendment of section 23A—Discharge of detention order under section 23

This clause makes consequential amendments.

15—Amendment of section 24—Release on licence

This clause makes consequential amendments.

16—Amendment of section 25A—Inquiries by medical practitioners

This clause makes consequential amendments.

17—Amendment of section 29—Regulations

This clause makes consequential amendments.

18—Transitional provision

The amendments will apply after commencement regardless of when the relevant offence or the offence that resulted in the person becoming a serious repeat offender or a recidivist young offender was committed or when the person was sentenced for that offence.

Part 5—Amendment of Sentencing Act 2017

19—Amendment of section 56—Application of this Division

This clause ensures that the Division can be applied to a recidivist young offender.

20—Amendment of section 57—Orders to protect safety of community

This clause amends the current section allowing orders for ongoing detention of offenders who are incapable of controlling, or are unwilling to control, sexual instincts by extending that section to recidivist young offenders and serious repeat offenders who are incapable of controlling, or are unwilling to control, sexual instincts or violent impulses.

21—Amendment of section 58—Discharge of detention order under section 57

This clause makes consequential amendments.

22—Amendment of section 59—Release on licence

This clause makes consequential amendments.

23—Amendment of section 62—Inquiries by medical practitioners

This clause makes consequential amendments.

24—Amendment of section 67—Regulations

This clause makes consequential amendments.

25—Transitional provision

The amendments will apply after commencement regardless of when the relevant offence or the offence that resulted in the person becoming a serious repeat offender or a recidivist young offender was committed or when the person was sentenced for that offence.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:04): I rise to speak on the Statutes Amendment (Recidivist and Repeat Offenders) Bill 2017. Before I move to the substance of the bill, I indicate that the Attorney-General has put a request to the opposition to consider this bill as a matter of urgency, in particular to agree to the expeditious passage of this bill in the House of Assembly. If passed, I presume in an expeditious manner in the other place within the next few weeks, it will have the effect of ensuring one of the aspects of this bill, which relates to the capacity either to detain or continue under supervision a person who is currently in custody and deal with them in a manner that is preferable to what would occur if there was no passage of this legislation.

It does not, apparently, relate to all aspects of this bill, but it does relate to one aspect. I do not think it is necessary for me to go into it, but essentially the passage of this bill will ultimately enable the Supreme Court, on application, to make a decision to extend the supervision and/or detention of a person, which would apply to this case. I do not think it is necessary for me to go into the particulars of this case. If it does become necessary, it will be a matter we will raise in another place.

There are circumstances from time to time when we are presented with a request from the government that suggests some urgency, that we need to take on good faith that the clear and present danger is there if the matter is not dealt with expeditiously and have our support to deal with it; sometimes, that is obvious. It might be in relation to quickly remedying a defect. Sometimes, it may be to protect, as we have done with vulnerable witnesses just recently. Sometimes, it is to deal with legislation, such as an agreement for terrorism matters and things of that nature. We do accede to this from time to time.

We take that information on good faith. This is a case where we are prepared to do that, but it is with the clear proviso that we reserve the right to raise issues about this in another place and on the understanding that, notwithstanding the imminent aspects of this that require attention and abridged assessment in this house, we will be given a full briefing on this bill and the whole of the implementation of its effect and that we have an opportunity to at least consult with immediate players.

In short, as the government provided a copy of the Attorney-General's second reading contribution during question time today, in between other important business I have tried to absorb essentially what the bill will do. I think it is fair to say that it will extend the application of persons who have been sentenced, and their head sentence concluded, to enable serious repeat adult offenders and/or recidivist young offenders under 18 years of age to have a new process, firstly, to enable a court order to be made to ensure that there is a relief from what was otherwise a requirement under proportionality of offence and, secondly, to enable ongoing supervision. All that is on court application. They are matters we will obviously consider in substantial debates later on.

The other aspect is to extend the Criminal Law (High Risk Offenders) Act to enable the application of this regime to more than just sexual offences but to all serious offences. That is how I am reading it generally at this point. There will also be an expansion of a category of offenders in that regard to deal with the presumption against release on bail. So we have certain regimes in place. They are going to be amended.

They are clearly going to be expanded to accommodate children in certain circumstances and a broader range of offences that can have the trigger of giving access to the Criminal Law (High Risk Offenders) Act procedures. Members should be aware that the high risk offenders act does not apply to youths at this point. Earlier this week, we considered legislation in respect of reform in terrorism, and the government foreshadowed application of the reforms in that regard to 16 and 17 year olds. We have already indicated that we would agree in those circumstances that it is reasonable that they be incorporated.

So there are circumstances, notwithstanding all the other debates this week about other matters, where we accept on this side of the house that 16 and 17 year olds, in discrete circumstances and in respect of discrete offences, need special consideration. There may well be a case for the process that we have employed in recent years for adults that is applicable to some youths in certain circumstances. We will obviously look at that in some detail.

One of the things that became clear was that the bill is also to apply to enable the Supreme Court on these applications to provide an interim order. I cannot remember when we debated the principal act on this whether or not that was allowed, but I suspect for the purposes of the urgency in this matter that the amendments to enable the Supreme Court to make an interim order may be a valuable tool that will be relied upon in respect of the matter that has been raised with us.

It is a unique set of circumstances that has been put to us. We have taken it on face value; we take it in good faith that the matter is necessary and can be protected by the amendments in this act and that it is necessary in the interests of the safety of the community that we do that. It may be that on further consideration there are alternative options for the matters that have been put to us, and we will explore those between the houses. But we are certainly not of a mind to frustrate what has been presented to us as an urgent situation.

The two things that are important in the course of the adjournment between the houses is firstly to have a briefing. Certainly, we would like to have a briefing. I foreshadow to the government that that can be made preferably next week at some time. Obviously there are only four business days in that week, and we expect that being school holidays some advisers may have commitments, but we would like that to be next week.

Secondly, as the new processes are proposed to deal with the Parole Board and the Training Centre Review Board in respect of conditions that it be set under the new regimes, I seek that the briefing include representatives from those entities. I am assuming at this point that these bodies have been consulted already in respect of the drafting of this bill. I have no idea at this stage what the gestation period for the development of this bill was, or whether in fact it was prepared over a period of time following its usual course, but the advance of a particular case has brought it to the urgent attention of the parliament.

It is quite a comprehensive reform and it appears to cover matters that go beyond the circumstances, at least in the abbreviated details I have been given, of this case. I suspect that there have been aspects of this bill that should have been under consideration for some time in a general reform consideration. I may be wrong, and perhaps the briefing will elicit that. On that basis, I indicate that I would like the Attorney's commitment, in response, to ensure that we are given expeditious and comprehensive briefings, that we have representatives of those parties I have indicated and that I have a list of parties that the government have consulted or will be consulting on this in the next two weeks. I assume that this acquiescence will be followed by a listing in the Legislative Council on or about 17 October.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:15): First of all, I thank the Deputy Leader of the Opposition for her cooperation and the cooperation of her leader and the party in this matter. It is an unusual matter, and it is a matter that is obviously proceeding in a way that is unusual. I can assure the house that I would not be proceeding in this way if I did not feel it necessary to do so.

In terms of the question about the genesis of bits and pieces of this, I think it is fair to say that, inasmuch as this refers to some matters, they are matters of concern to me which were not necessarily of acute concern to me because they were not presently matters which were threatening to cause any disruption to the community. They were matters that had some longer standing and it was my intention that in due course I would get around to looking at those matters.

Then there are other matters in here which are extremely urgent, and those matters have come to my attention very recently and necessitated some absolutely extraordinary efforts on the part of those who advise me, and of parliamentary counsel, to enable me to be in a position today to ask the house to assist in the way that I have. In answer in general terms to the questions put to me by the deputy leader, there is a mix of things in here.

There are some aspects of this that have been generated extremely recently and under intense time constraints in order to be able to meet the possibility of the parliament dealing with the matter. In respect of the request for briefings, I am entirely happy to offer every assistance I possibly can to the deputy leader in order for her to be able to understand all the matters that we are talking about here and obviously to be able to advise her colleagues as to how to proceed. Some of the material that we will have to share perhaps with the deputy leader might have to be on the basis that it remains confidential to her.

Clearly she could share her conclusions with her colleagues; there might be aspects of this that are difficult for broader conversation, for reasons I am sure she would understand. The question about the Parole Board and suchlike, I have noted those points and I will ask those who assist me to facilitate those people being engaged. As for the question about other people who may or may not potentially have a view about this, quite frankly, if we need to proceed with this, I do not view us as having anything remotely like the time available to us to go through any of the usual conversation processes with the usual time lines because we are simply not talking about that.

I am happy to leave it that I made a request of the Leader of the Opposition and the deputy leader to assist the government today on the basis that the government understood that the opposition, in assisting us in this place today, was not making any commitment to do one thing or another elsewhere. We respect the cooperation we have received on that basis. We intend to say very little further about this matter other than in the context of briefing the deputy leader, the leader or whoever needs to be briefed about this matter. I think there will be a lot of work to be done over the next couple of weeks. Hopefully, by the time we get to the end of that couple of weeks, there will be a position that can be agreed between the government and the opposition about how this matter can proceed.

I can indicate to the house that, if this matter needs to proceed when the parliament resumes, it will need the same cooperation from the other place that the Deputy Leader of the Opposition and the opposition parties in this house have been good enough to offer here because it may be that time is very much of the essence. With those few words, I think I have canvassed what the deputy leader put to the house. Again, I thank the opposition for their constructive consideration of this matter, and I can assure them that we will be doing everything we can to include them in as open as possible a conversation about the whys and what-fors of this over the next week or two.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (17:22): I move:

That this bill be now read a third time.

Bill read a third time and passed.