Statutes Amendment (Sentencing) Bill

Introduction and First Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:14): Obtained leave and introduced a bill for an act to amend the Criminal Procedure Act 1921 and the Sentencing Act 2017. Read a first time.

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (16:14): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Sentencing) Bill 2020 into parliament today. This bill amends both the Sentencing Act 2017 and the Criminal Procedure Act 1921 to improve how sentence reduction schemes operate within our criminal justice system. It responds to the recommendations made in the report by the Hon. Brian Martin AO QC, following his 2018-19 review of the sentence reduction scheme.

The sentence reduction scheme, often known as sentence discounting, is contained in part 2, division 2, subdivision 4 of the Sentencing Act. The scheme was introduced by the former Labor government through the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 and came into operation on 11 March 2013. The scheme adopted into legislation the principle that had previously operated as part of the common law; that is, an offender's sentence can be reduced if they plead guilty before trial. It did so by creating a tiered scheme specifying the maximum percentage by which an offender's sentence can be reduced based upon the particular stage in the court's process at which the guilty plea is entered.

When it was introduced, the stated purpose of the scheme was to tackle the problem of delays in the criminal courts in this state, to provide a fairer and more transparent scheme than existed at common law, and to ensure that the reductions received by offenders diminish rapidly for pleas entered later in the prosecution process.

Importantly, the scheme aimed to encourage guilty defendants to plead guilty early in the prosecution process by linking the extent of the reduction available to the defendant directly to the stage of the court proceedings at which the plea is entered. The earlier the plea is entered, the greater the reduction to be applied. This was intended to reflect the benefits that early guilty pleas provide to the community, the justice system and to victims of crime.

Let me be clear about one thing: the sentencing reduction scheme that currently operates in our state was developed, introduced and passed through the parliament by the former Labor government . This is their scheme and it is their legacy. The government at the time openly stated that the main objective was to improve the operation and effectiveness of the criminal justice system by decreasing delays and backlogs in cases coming to trial.

Before I go on to speak about what the bill I am introducing today seeks to remedy, I want to reflect on the words of the former deputy premier, the Hon. John Rau SC, when he first introduced the legislation into the South Australian parliament. He said, and I quote, the legislation 'should not result in the granting of unduly lenient sentences for offenders through excessive discounts', and further to that, 'Any perception that the bill will allow offenders to escape their "just deserts" and appropriate punishment by pleading guilty is mistaken.' Those words should haunt the members opposite, for we all know this prediction has not been borne out in practice.

In September 2018, Mr Brian Martin AO QC was appointed to conduct a review into the sentencing reduction scheme. The report, which was published in June 2019, made a number of recommendations suggesting appropriate amendments be made to the scheme. Some of those recommendations represent what could be described as technical changes to the Sentencing Act and the Criminal Procedure Act to ensure that the sentencing process operates more smoothly and fairly, whilst other recommendations represent more substantial policy changes.

Mr Martin recognised in his report a tension between two often competing public interests. These are the public interest in 'the protection of the public through the imposition of sentences that will best achieve that objective', on the one hand, and the public interest in 'assisting victims and in economic considerations attached to the operation of the criminal justice system', on the other. Again, let me be clear that, when we talk about economic considerations, we are talking about the former government's clear agenda to try to save money in respect of the reforms that it offered in that bill.

Mr Martin both examined data and received submissions from criminal justice sector stakeholders, members of the public, academics and victims. The data he examined revealed that the scheme has encouraged a greater number of defendants to plead guilty early in the proceedings but has not, on the whole, shortened the time taken to finalise serious matters.

A key theme to emerge during consultation was that the victims feel devalued by the current scheme, which is exacerbated by the extent of the available discount—up to 40 per cent for some cases. The significant reductions received by offenders are also out of touch with community expectations, which is particularly so when the offending is serious and there is a strong prosecution case—sentiments echoing the then opposition's concern back in 2013.

Public sentiment was that a significant reduction being applied to a sentence that the court has otherwise deemed appropriate suggests that the offender is not receiving a punishment that matches their crime. However, a number of criminal justice sector groups expressed support for the retention of the scheme in largely in its current form on the basis that it provided certainty for defendants and thus greatly encouraged the guilty to plead guilty at an early stage.

The Law Society in its submission to Mr Martin, however, acknowledged that even though the scheme appeared to be working well from a case load management perspective, if public confidence in the scheme is lacking then there is a case for reform. Ultimately, Mr Martin concluded that the maximum discounts available to offenders for serious offences are too high, but by making adjustments to the existing scheme, an appropriate balance could be struck between an affordable criminal justice system on the one hand and public confidence in that system on the other, and that is precisely what this bill does.

Most of the recommendations made by Mr Martin have been adopted in this bill and all key recommendations have been adopted, namely:

1. Reducing the maximum discounts available for guilty pleas for all major indictable offences;

2. Further reducing the maximum discounts available for guilty pleas to serious indictable offences, including, amongst others, offences which result in the death or serious harm to a person and serious sexual offences;

3. Retaining the discounts available to the Magistrates Court;

4. Ensuring that courts can apply a lesser discount if a guilty plea is entered in the face of an overwhelming prosecution case; and

5. Ensuring that courts can apply a lesser discount if a defendant:

has shown no genuine remorse for his or her offending;

has intentionally concealed his or her crime; or

has disputed the factual basis of a plea and the court has not found in their favour.

Adoption of these recommendations will ensure, firstly, that reductions received by defendants are more closely aligned with community expectations and, secondly, that courts can apply the reductions more flexibly than has been the case to date.

Turning to consider the bill more closely, the most significant amendments are found in part 3 of the bill, which amends the Sentencing Act. The scheme of reductions for sentences for guilty pleas to summary and minor indictable offences in the Magistrates Court is found in section 39 of the Sentencing Act. As recommended by Mr Martin, the reductions available under this provision are maintained at current levels.

The scheme for reduction of sentences for guilty pleas and other cases—that is, major indictable offences and other offences finalised in the District Court and Supreme Court—is found section 40 of the Sentencing Act. This bill amends this section to provide for two separate tiered schemes, one for serious indictable offences and one for all other offences dealt with under section 40.

The bill provides that a 'serious indictable offence' is defined to mean a serious offence of violence, within the meaning of section 83D of the Criminal Law Consolidation Act 1935, and a serious sexual offence within the meaning of section 52(1) of the Sentencing Act for which the maximum penalty is or includes at least five years' imprisonment. Defined in this way, 'serious indictable offence' will include, for example, offences of murder, manslaughter, causing death or serious harm by dangerous driving, rape, maintaining an unlawful sexual relationship with a child, unlawful sexual intercourse, aggravated indecent assault and offences relating to the production and dissemination of child exploitation material.

For these serious indictable offences, the maximum reduction that a court may apply for a guilty plea will be up to 25 per cent, which has been reduced from the current maximum of up to 40 per cent. The reductions available to defendants pleading guilty to serious indictable offences will be similarly reduced at each tier, such that a plea entered at the first arraignment in the District Court or Supreme Court will attract a maximum reduction of up to 5 per cent. Currently, the applicable reduction is up to 15 per cent.

For other offences falling within the scope of section 40 of the Sentencing Act the reductions at each tier are consistent with the recommendations of Mr Martin—reduced by 5 per cent. Accordingly, a plea within four weeks of the first appearance will attract a reduction of up to 35 per cent (compared with 40 percent), whilst a plea at first arraignment will attract a reduction of up to 10 per cent (compared with 15 per cent).

In addition to this, both sections 39 and 40 are amended to provide that all sentencing courts must have regard to the following additional factors when determining the appropriate reduction in respect of any offence:

First, whether the defendant disputed the factual basis for sentence and a hearing occurred in relation to that dispute, which is not determined in favour of the defendant;

Secondly, whether the defendant intentionally concealed the commission of his or her crime and, if so, the period of time for which the concealment persisted. An example of this might be a murder in which the offender has hidden the deceased's body and other evidence of the murder and has told lies about the deceased having run away in order to hide the fact of their disappearance;

Thirdly, whether any genuine remorse on the part of the defendant is so lacking that a reduction by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice; and

Fourthly, whether the prosecution case against the defendant is so overwhelming that a reduction by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice.

The latter two factors, genuine remorse and the strength of the prosecution case, are expressed as mandatory considerations once a court is satisfied that the threshold has been reached, that is, where there is so little remorse or the prosecution is so strong that the contemplated reduction may affect public confidence in the administration of justice.

This seeks to strike a balance between flexibility of approach on the one hand—that is, enabling a court to lessen a reduction in appropriate cases—and ensuring that courts are not overwhelmed with the task of having to make an assessment as to the strength of the prosecution's evidence in relation to every charge for every offender who comes before the court. Such a requirement would create an enormous burden for courts and may also further traumatise victims of crime if, for example, a court determined that the prosecution case was weak, particularly if it relied largely on that victim's evidence.

Importantly, the bill provides that a court should ordinarily make the assessment as to the strength of the prosecution case by reference to affidavits and other documentary evidence before the court. This is to avoid witnesses, for example the victim of a sexual assault, being required to give evidence solely for this purpose. Such a situation would significantly negate the benefit of a guilty plea. The bill also extends to both the Magistrates Court and the higher courts respectively the time within which defendants can receive the first tier of reductions in very limited cases.

In his 2019 review, Mr Martin received submissions to the effect that the strict four-week time frame is too short for some defendants to properly instruct and receive advice from a lawyer. This is often particularly the case for Indigenous defendants living in remote communities, living itinerant lifestyles or for whom English is not their first language. Such defendants may be many hundreds of kilometres from a lawyer and may have very limited access to linguistically and culturally appropriate interpreters.

Similar submissions were received and a similar recommendation made by Mr Martin when he conducted a review of the scheme back in 2015, which was mandated by section 9 of the Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012.

Accordingly, the bill amends sections 39 and 40 of the act to provide that a court may apply the highest reduction if a plea has been entered within 14 days of the expiry of the first tier and the court is satisfied that the defendant was unavailable to obtain legal advice due to remote residency, itinerancy or communication difficulties stemming from the inability to speak reasonably fluent English. So the circumstances for that applicability, of course, are quite narrow.

The bill also repeals section 38 of the Sentencing Act, which currently allows for a reduction in penalty of up to 10 per cent even when the defendant did not plead guilty, put the prosecution to proof and was convicted following a trial, but notwithstanding all that, he or she had still complied with all procedural requirements.

Mr Martin's report concluded that this provision is out of step with community expectations and moreover that compliance with procedural requirements will often be more of a reflection on the defendant's lawyer than on the defendant themselves. The Marshall Liberal government agrees that this reduction in sentence should no longer be available to guilty defendants who have put victims through the trauma of giving evidence at a trial.

Part 2 of the bill amends the Criminal Procedure Act 1921. These amendments are what might be described as more procedural in nature. The most significant amendment is found in clause 5, which creates a new division 3A of part 5 of the act, comprising a new section 115A. This will empower a magistrate to take a plea to a statutory alternative to a charged offence or an attempt to commit the charged offence.

This amendment is important in the context of the sentence reduction scheme because it will mean that the sentence reduction clock (which determines the maximum reduction that can be applied) for all offences—both charged offences and uncharged alternatives or attempts—will start ticking at the defendant's first court appearance.

Currently, if the defence and the prosecution agree upon a plea to an uncharged statutory alternative or attempt—that is, an attempt to commit the offence—fresh information would need to be filed in order for the plea to be entered, and the clock would then start ticking all over again at that point. In this situation, defendants would be entitled to a reduction of up to 40 per cent, notwithstanding that the plea to the lesser alternative was not entered or even offered until well after four weeks after their first court appearance. Section 115A will remedy this anomaly.

I am pleased to introduce these important reforms into parliament today that will put the protection of the community back at the heart of the sentencing laws in our state. The amendments contained in this bill will remedy the errors made by the former Labor government when they chose to place a desire for improved court efficiency and saving money over all other considerations in the sentencing process.

Whilst we will always strive to ensure that our court system is as efficient as possible, it is our—that is, the Marshall Liberal government—view that this should never come at the cost of justice. Members, I commend this bill to you. I seek leave to insert the explanation of clauses into Hansard, which I trust will assist in the further debate of the matter.

Leave granted.

EXPLANATION OF CLAUSES

Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Procedure Act 1921

4—Amendment of section 108—Division not to apply to certain matters

A new subsection (3) is inserted for the purposes of avoiding any doubt in relation to the operation of section 108(2).

5—Insertion of Part 5 Division 3A

New Division 3A is inserted into Part 5 of the Act:

Division 3A—Pleas to alternative offences and attempts in the Magistrates Court

115A—Pleas to alternative offences and attempts in the Magistrates Court

New section 115A makes provision in relation to a person charged with an offence who please guilty to an alternative offence or an attempt to commit the offence charged. It provides for the Magistrates to sentence the person or commit the person for sentencing in a superior court (if relevant). Provision is also made for circumstances where the person changes or withdraws their plea of guilty.

6—Amendment of section 133—Conviction on plea of guilty of offence other than that charged

The phrase 'sentenced for the offence to which the plea of guilty is entered' is added after the reference to a person being convicted on a plea of guilty to an alternative offence to the offence charged. Paragraph (c) is deleted.

Part 3—Amendment of Sentencing Act 2017

7—Repeal of section 38

Section 38, which relates to the reduction of sentences for cooperation with procedural requirements, is repealed.

8—Amendment of section 39—Reduction of sentences for guilty plea in Magistrates Court etc

Certain considerations are added to the list of considerations a court must have regard to in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea.

A provision is included to allow for the maximum sentence reduction to be applied in the sentencing of a person who pleads guilty no more than 14 days after the expiration of the period during which the maximum sentence reduction is ordinarily available under the section, if the person lives in a remote location, has an itinerant lifestyle or specified communication difficulties.

9—Amendment of section 40—Reduction of sentences for guilty pleas in other cases

The various percentages by which a sentence for an offence may be reduced in respect of a guilty plea are amended and the percentages differ according to whether offence is a serious indictable offence or not such an offence.

Certain considerations are added to the list of considerations a court must have regard to in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea.

A provision is included to allow for the maximum sentence reduction to be applied in the sentencing of a person who pleads guilty no more than 14 days after the expiration of the period during which the maximum sentence reduction is ordinarily available under the section, if the person lives in a remote location, has an itinerant lifestyle or specified communication difficulties.

The term serious indictable offence is defined.

10—Transitional provision

A transitional provision is inserted for the purposes of the measure.

Debate adjourned on motion of Ms Hildyard.