Sentencing (Serious Repeat Offenders) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 22 July 2020.)

Mr ODENWALDER (Elizabeth) (17:47): I rise to speak on the Sentencing (Serious Repeat Offenders) Amendment Bill 2020. I indicate that I am the lead speaker for the opposition on this bill, perhaps the only speaker. I foreshadow that I will not be troubling the house too long. I certainly will not be troubling the Attorney's advisers with too many curly questions on this one.

I will say from the outset that this is a bill that the opposition will be supporting. Indeed, we have always supported, I have always supported, every sensible law and order or court efficiency measure that has been brought into this place by the Attorney or by the police minister. We have seen fit on various occasions to try to amend, try to improve upon, in our view, various measures brought in by the Attorney or by the police minister, but we have always supported anything sensible.

I will just say in passing that, with the elevation of the former Speaker to his new position of police minister, I hope that we can see something of a reset in the government's approach to community safety, because while we do support their measures, when and if they happen, often they do not go far enough and often they are undermined by various cuts, particularly the cuts made in the government's first budget—the cuts to SAPOL, the cuts to Crime Stoppers and the cuts in the Attorney's own portfolio areas in relation to CCTV, community safety lighting and the safe city program in the CBD.

But that is a digression. As I said, the opposition does support this bill. This bill seeks to clarify the laws on serious repeat offenders that the Labor Party, the previous government, brought into this place in 2017. We acknowledge that in the passage of that sentencing legislation it did throw up some anomalies. I noticed it myself in my role as shadow police minister looking at the role of sentencing and was pleased that the Attorney brought this in. I should say also that I was pleased with the very comprehensive briefing that both the Hon. Kyam Maher from other place and I had from the Attorney's advisers.

I believe that these changes will improve the operation of both the courts and SAPOL and the way they go about deciding on charges. Hopefully, they will create some efficiencies in the court system. While some of the measures are in favour of the defendant—and we will get to that—I think that overall justice will be served by simplifying these measures. When a person is found guilty of committing three serious offences or two sexual offences, they are deemed to be a serious repeat offender for sentencing purposes. After being deemed a serious repeat offender, criminals are punished more severely for further offending, even for less serious crimes, and this can include setting parole periods that are at least 80 per cent of a head sentence and not requiring proportionality between the offence and a sentence.

You will appreciate that this removes some discretion from the courts; however, judges still retain the ability not to declare the person a serious repeat offender in exceptional circumstances. From my understanding, we still retain the judicial discretion not to impose a custodial sentence at all so that the 80 per cent measure does not take effect even in those situations. Obviously, the main thing this bill does is seek to address potential confusion over which offences may fall into either of those two categories, including when relevant offences have been committed in other jurisdictions.

If I understand the advice from the Attorney and the advisers, we have had situations where fairly similar offences committed in other states have not contributed to the benchmark needed in order to put someone in the category of a serious repeat offender, and this bill, to my understanding, does address that. The bill amends sections 52 and 53 to be clearer and more concise. It rewrites the interpretation provision of section 52 to be simpler. It repeals the definition of category A serious offences, which is where most of the confusion we have talked about arises, so that certain offences do not fall into two categories at once so the courts are forced to choose between the two categories of offences and often have chosen in favour of the defendant. It just clarifies that.

The bill refers directly to offences contained in the Criminal Law Consolidation Act. It has two categories of offences rather than four and it expands the definition of 'serious offences' and 'serious sexual offences'. There will be some questions in the committee stage. As I said, I do not think it will trouble the minds of the Attorney's advisers too much, but there will be some questions about which offences are or are not included and which offences may potentially attract a lesser sentence, if you like, or may not contribute as much to the factors needed to make them a serious repeat offender.

With regard to transitional provisions, this bill seeks to ensure the changes will apply to a sentence that is imposed after the bill's commencement regardless of when an offence was committed. In very simple terms, this bill makes this regime easier for the police to prosecute and it makes it easier for the courts and the DPP to do their job when seeking to apply these provisions to offenders who have committed multiple serious crimes.

None of this is to take away from the intention of the sentencing provisions, which recognise that serious repeat offenders need a level of not so much punishment but incarceration perhaps that offenders who may make simple mistakes do not deserve. Serious offences considered in the bill include murder and manslaughter, serious sexual offences, criminal trespass, robbery and serious drug trafficking.

As I said, our court system is not designed, or it should not be designed, to lock up people for simple offences. It should not be designed to simply lock up people who have made simple errors of judgement on one or two occasions. Our system is designed to ensure that people are punished more harshly when they commit multiple serious offences. With those few remarks, I commend the bill to the house.

Ms LUETHEN (King) (17:54): I rise to speak in support of the Sentencing (Serious Repeat Offenders) Amendment Bill 2020, which again is fixing rushed and ineffective legislation introduced by the former Labor government. My constituents want our government to get tough on crime and that is exactly what we are doing, and people breaking the law will be dealt with seriously if they have committed serious crimes.

The Sentencing (Serious Repeat Offenders) Amendment Bill 2020 seeks to address a number of practical issues with the serious repeat offender provisions in the Sentencing Act 2017. By doing so, the Marshall Liberal government is ensuring there is clarity in how these laws are applied and a more streamlined process by which serious repeat offenders are identified and dealt with in the criminal justice system.

The serious repeat offender provisions were initially inserted into the Criminal Law (Sentencing) Act in 2003 and then re-enacted in the current Sentencing Act 2017. They provide that once an offender has committed a certain number of serious offences for which a term of imprisonment has been imposed, the offender must be sentenced more harshly than would otherwise be the case, and any non-parole period must be at least four-fifths of the head sentence.

Changes over the years have meant it is now unclear how many offences it takes to reach the threshold for being considered and sentenced as a serious repeat offender. There is also confusion around the types of offences that are covered and how offending in other jurisdictions is to be considered in our courts. The criminal law act previously provided one automatic category for becoming a serious repeat offender, which was if an offender committed three category A serious offences.

The Criminal Law (Sentencing) Act also provided three discretionary categories: (1) if an offender committed three serious offences; (2) if an offender committed two serious sexual offences against a person under the age of 14; or (3) if an offender committed two category A serious offences. In other words, the court retained a discretion whether or not to declare someone a serious repeat offender in relation to these three categories. When the Sentencing Act was rewritten by the former Labor government in 2017, section 53(1) was amended so that offenders automatically became serious repeat offenders in all three of the circumstances listed above.

However, the current drafting of the provisions is confusing and inconsistent and has led to difficulties for the DPP, the courts and the South Australian police in applying them. In particular, it is currently unclear how many offences it takes to reach the threshold for being considered and sentenced as an adult serious repeat offender. Given the inconsistencies in the current legislation, the Marshall Liberal government has carefully reviewed these laws with a view to rewriting the provisions so that they are far more logical and easier to apply.

The bill provides that a person will automatically become a serious repeat offender if they have been convicted of at least three serious offences on separate occasions or at least two serious sexual offences. Importantly, additional problems with the current drafting will be fixed by describing offences by reference to the relevant section of the Criminal Law Consolidation Act 1935 that creates them; adding aggravated criminal trespass (section 170A of the Criminal Law Consolidation Act) to the list of serious offences; omitting the specific reference to violent offences as they are already covered by other provisions; and providing that offences committed in other states or territories are to be assessed by reference to the conduct involved in order to determine whether they are counted as serious offences under the South Australian regime.

This is yet another example of the Marshall Liberal government fixing legislation that was rushed through parliament by the former Labor government. The serious repeat offender provisions are an important deterrent in the fight against reoffending. Taken together, the changes in this bill will have a positive impact on the workability of the serious repeat offender provisions and will streamline the process by which serious repeat offenders are identified and dealt with. This is yet another way in which the Marshall Liberal government is ensuring tough penalties for serious offenders.

Sitting suspended from 18:00 to 19:30.

Ms LUETHEN: I thank the Attorney-General for continuing to introduce changes that protect South Australians and ensure that the penalties for breaking the law are effective and as harsh as South Australians would expect for these types of serious repeat offences, which is what my constituents in King have asked me for. These amendments make it easy for police to prosecute serious repeat offenders, and this is critical. I commend the bill to the house.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (19:31): I thank members for their contributions, in particular the member for King for her passionate contribution, and of course the indication from the opposition that they will support the bill.

There is just one matter of correction I wish to place on the record, and that is regarding the shadow minister's indication that, as a government, we had reduced the budget for Crime Stoppers. Let us be very clear about this: under the previous regime, as a government they did not contribute to Crime Stoppers. Prior to the last election, the Labor Party announced that, after completely abandoning it for years, they would make a contribution towards the operating budget of Crime Stoppers. Of course, they did not get into government. Therefore, the suggestion that we cut the budget—which did not exist—is completely untrue.

This is an organisation that has a role in the community of helping to fight crime by utilising the public to alert SAPOL to leads, witnesses, etc. It works on the basis that they have a board, and they have telephone services via SAPOL because they are providing a service to SAPOL. They also have the benefit of a contribution from Channel 9, a significant sponsor, and in more recent years they have had sponsorship from the Police Credit Union.

These are all valued contributions to that enterprise, and we wish them well. However, that does not mean I will accept this assertion, which is completely untrue, that we had cut the budget of Crime Stoppers.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 3 passed.

Clause 4.

Mr ODENWALDER: Clause 4 is the substantial part of the substitution of sections 52 and 53. I reiterate that I do not think I will be taxing the mind of the Attorney or her adviser during these questions. My first question is: when was the Attorney-General first made aware of the difficulties with the current serious repeat offender provisions in the Sentencing Act?

The Hon. V.A. CHAPMAN: It was late 2018. It was raised with me by the former director of public prosecutions as a potential area of concern. As was clear at that stage, the legislation had only just come into effect. It was passed in 2017. It became operative earlier that year on 30 April 2018—I have the exact date—so it was a matter of some months when there could be some potential difficulty. Clearly, it was too early to do anything about it because there were not really any identified problems but just potential problems, and that was acknowledged. The legislation had just come into effect.

This was legislation introduced by the previous government. We sent it off to the relevant parties to look at, in any event, and ultimately brought the matter in with this bill. Obviously, in between we had a six-month hiatus between the former DPP and the new DPP. When the new DPP came online, we consulted with him. By that stage, we were into August or September 2019, or something like that. He had it as one of his first things to have a look at and so we then progressed the matter this year.

The question is the ease with which you can do it. You can still do it under the current act, but it is complicated. Were we capturing all the offences of people who were in South Australia who might have committed offences interstate? Probably not and therefore we needed to have a look at that. More importantly, the legislation, as to what offences were to be in the categories to create the thresholds to enable the accumulation to apply the higher obligations of sentencing, was complicated, so we wanted to make it as easy as possible. That is the whole purpose of this legislation.

Mr ODENWALDER: Did the new DPP then come to you and say in regard to the interstate offences that that is a particular problem? 'We are having this problem where there are these interstate offences. We don't know whether they fit into these categories to reach the threshold.' Was that a concern of the DPP or was that someone else? How did you arrive at this conclusion?

The Hon. V.A. CHAPMAN: It was raised initially by the first DPP. As I said, it was embryonic legislation at that stage. Apparently, the second DPP did not have such concerns about that aspect, but in any event we followed it through.

Mr ODENWALDER: Who else was consulted?

The Hon. V.A. CHAPMAN: On the bill? Let me just quickly run through them: the Chief Justice of the Supreme Court, the Chief Judge of the District Court, Judge Penny Eldridge of the Youth Court, the Chief Magistrate, the Law Society of South Australia, who incidentally were not supportive about the retrospective effect—

Mr ODENWALDER: Who?

The Hon. V.A. CHAPMAN: The Law Society.

Mr ODENWALDER: They were not?

The Hon. V.A. CHAPMAN: No.

Mr ODENWALDER: I will not hold that against you.

The Hon. V.A. CHAPMAN: The SA Bar Association, unsurprisingly, did not support it. The Legal Services Commission was generally supportive. The ALRM and the Director of Public Prosecutions were consulted and the Commissioner of Police, who incidentally did support it. Obviously, there were changes recommended by the new DPP. The Chief Executive of the Department for Correctional Services, the Crown Solicitor and the Commissioner for Victims' Rights were consulted—largely, the courts. The Chief Judge of the District Court did not comment at all but, largely, the judiciary supported it.

The CHAIR: Member for Elizabeth, I am taking that last question as seeking clarification?

Mr ODENWALDER: Yes, thank you, I appreciate that.

The CHAIR: So if you would like to ask another one, you may. Clause 4?

Mr ODENWALDER: Yes, still on clause 4. Attorney, are the offences caught by the definitions of 'serious offence' and 'serious sexual offence' in your opinion narrower or broader than the existing provisions, and can you say with confidence that the new definitions capture all the relevant offences and no offences have been overlooked?

The Hon. V.A. CHAPMAN: On the latter question, I could not say I could guarantee that. Obviously, my advisers have identified to the best of my understanding those where the maximum penalty prescribed for offences includes imprisonment of at least five years, and there is a whole list of them.

I am advised that in relation to clause 4, new section 52(b)(vii) is a new aggravated offence that has been added in under 170A of the Criminal Law Consolidation Act 1935, that is, aggravated criminal trespass in a place of residence. In addition, we have section 51 where we are adding paragraph (b) in that definition, which states that it is 'an offence under section 51 of the Criminal Law Consolidation Act 1935', which is sexual exploitation of a person with a cognitive impairment.

I am also advised that new section 52(b)(iv), 'an offence under Part 3 of the Criminal Law Consolidation Act 1935', enables offences to be automatically included in the list as they are added to part 3, so we minimise the risk of losing that. We have really broadened the definition of the application of serious offences that get included, and that is why it is a better system and captures more offenders.

Clause passed.

Clause 5 passed.

Schedule 1.

Mr ODENWALDER: Attorney, will there be any adverse consequences for current offenders who have already pleaded guilty and are waiting to be sentenced due to the retrospective application of these transitional provisions?

The Hon. V.A. CHAPMAN: In terms of serious repeat offenders, my understanding is—and I think some data has been provided to the member—a little over one a week might come before the courts. For any caught in the transition, some will be advantaged, some will not. For example, because we are now adding in the criminal trespass in a place of residence—an aggravated version of that—they will be worse off.

In relation to serious offences, I suppose it depends on what you are charged with, but if they were the original category A instead of the three broader ones, they could be better off; it is hard to know because it depends on what the offences are. My advice is that it is a swings and roundabouts situation. It is possible that one or so may be in that category, or maybe none; we just do not know. It is to the advantage of some and a disadvantage to others, depending on what you are charged with and what you have accumulated before.

Mr ODENWALDER: On that basis, then, are there offenders now or offenders who formerly would have been captured by the serious repeat offender provisions, who would have been considered in the serious repeat offender provisions, who, following the passage of this bill, would no longer be considered serious repeat offenders? In other words, are we downgrading certain people's status?

The Hon. V.A. CHAPMAN: I will try to make this as simple as possible. Under the category A offences, for which you needed to have two on your record to qualify for this next higher sentencing arrangement, the offences were home invasions, a serious and organised crime offence or a serious firearm offence. When we moved to the serious offences, that changed, because obviously there are a lot more of them but they were not called category As. They are all on the list of serious offences, but there are more of them; we had extra. We have broadened the definition of what was going to be applied under 'serious'.

It depends entirely on what you are charged with as to whether you are applied. If you were lucky and under a category A—or unlucky, depending on how you put it—and then you were in the serious category, you might otherwise have gotten away with it. It is broader, so it is more application. Whether there is any one case like that in the system, we do not know because obviously the assessment of their prior record would not occur until they are actually charged.

That is the potential risk that the Law Society were concerned about. The problem at the moment is that you have two different systems, where there are two offences or three offences, and this is causing confusion to the courts. We are really just clarifying it so that we do not have this problem.

Mr ODENWALDER: I understand, Attorney. Coming from that, then, perhaps I could give you a scenario; we are allowed hypotheticals to a certain extent in this forum. Currently, arguably, someone convicted of two serious firearms offences would be captured by this legislation and be regarded as a serious repeat offender. Under the new bill, under the new regime, they would need to be convicted of serious firearms offences three times; is that right? The threshold is higher now.

The Hon. V.A. CHAPMAN: Yes, but there could be another category, where it does not require another serious firearms offence; there may be something else that is now caught in the serious offences that previously was not a category A. Do you see what I mean? You could have two firearms offences. Now we have a broader aspect, so they could be charged with that, whereas previously they would have to have another firearms offence or a serious and organised crime offence to be able to be caught. Now they have a broader category so they can be picked up on that basis. We have clarified the rule between two and three, and you have much more of a chance of catching these people because of the broader range of offences which will add to their aggregation. So it is a lucky dip for some of them.

Mr ODENWALDER: I appreciate that, and I appreciate that offenders do commit a series of offences of different types, but I am talking about a particular scenario where someone commits, at the moment, two serious firearms offences, with no other offences particularly around those that fit into the category. Now, in order for them to meet the threshold of serious repeat offender, they would have to commit those two offences plus another offence.

The Hon. V.A. CHAPMAN: Plus another serious offence.

Mr ODENWALDER: Yes, so the threshold has become higher for that particular offender.

The Hon. V.A. CHAPMAN: Yes.

Schedule passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (19:50): I move:

That this bill be now read a third time.

Bill read a third time and passed.