Criminal Law (High Risk Offenders) (Breach of Supervision Order) Amendment Bill

Introduction and First Reading

Mr ODENWALDER (Elizabeth) (10:49): Obtained leave and introduced a bill for an act to amend the Criminal Law (High Risk Offenders) Act 2015. Read a first time.

Second Reading

Mr ODENWALDER (Elizabeth) (10:49): I move:

That this bill be now read a second time.

Labor, in opposition and in government, has a proud history of putting community safety first. I am proud to have been part of a government that made sweeping changes to the criminal law and saw a dramatic decrease in the volume of crime over its 16 years.

The Hon. V.A. Chapman: Like discounting.

Mr ODENWALDER: Yes, indeed.

The Hon. V.A. Chapman interjecting:

The SPEAKER: Order!

The Hon. V.A. Chapman interjecting:

Mr ODENWALDER: Mr Speaker, I seek your protection, sir.

The SPEAKER: Order!

The Hon. V.A. Chapman: I'm helping him use up his 15 minutes.

The SPEAKER: Order!

Members interjecting:

The SPEAKER: Order, members on my right!

Mr ODENWALDER: I demand silence, sir.

Members interjecting:

The SPEAKER: The member for Elizabeth has the call. The member for Hammond is called to order.

Mr ODENWALDER: I can't demand silence at home, sir. This is the quietest place I know.

Members interjecting:

The SPEAKER: The member for Playford will cease interjecting. The member for Elizabeth.

Mr ODENWALDER: In government, we made it a point to take on, for instance, hoon drivers, and I notice this is topical in the news at the moment. We began, of course, the seizure and crushing regime, with over 2,000 vehicles crushed between the years 2012 and 2017. We took on serious and organised crime, and people, particularly the Attorney, know what a long journey that was.

That in part, as well as moves interstate and across the federal sphere, has led directly to the success we have seen this week in police operations, as well as many other initiatives to keep our community safe. We put record numbers of police on our streets, more per capita than any other state, and we have held the government to the same commitment that we held ourselves to, which is to provide more police per capita than any other state in Australia.

In opposition, we have continued that tradition, not only by supporting every sensible public safety measure brought to this place by the government but also by amending legislation and forcing changes of our own, whether it is in the protection of our kids, the area of domestic violence—and I commend the Attorney and the member for Elder for continuing the largely bipartisan commitment to domestic violence, largely through the multiagency protection service and through my own very special interest in the domestic violence disclosure scheme—or in amending a government bill to give our police the best legislative protections from assaults of any police force in this country.

We on this side also accept when we can improve on the measures we have put in place. In 2015, then Attorney-General, the former member for Enfield, brought into play in the South Australian law a new type of order, an extended supervision order (ESO). Members will know that extended supervision orders are there to be placed on those offenders who have served their full term of imprisonment and/or parole but are deemed to be such an appreciable ongoing risk to the community that they require ongoing supervision.

Before these orders were introduced in 2015, there was really no other option for the courts other than letting certain high-risk offenders go free at the end of their term of imprisonment and/or parole. That means that there were high-risk offenders, people we knew and understood were a significant risk to the community, who were simply free to live in the community. Clearly, this was seen as an intolerable situation.

The Attorney now, by virtue of the high-risk offenders act, has the power to apply to the Supreme Court for an extended supervision order so that a high-risk offender may be supervised and subject to various conditions. This bill builds on that legislation and it does so with the same guiding principle; that is, the safety of the public is paramount.

It is worth reflecting on the original legislation and on the type of offenders we are talking about here. A high-risk offender, by definition, is a person who has been convicted and sentenced to a term of imprisonment for, first of all, a serious sexual offence, where the maximum penalty prescribed for that offence is or includes imprisonment for at least five years. These are offences of rape, unlawful sexual intercourse, indecent assault, acts of gross indecency, abduction, procuring sexual intercourse, production or dissemination of child pornography, procuring a child to commit an indecent act, sexual servitude, use of children in commercial sexual services and incest.

It further includes any serious sexual offender who is serving a sentence of imprisonment in respect of any of the following offences: possession of child pornography; an offence under certain sections of the Child Sex Offenders Registration Act 2006—that is, failure to comply with reporting obligations and furnishing false or misleading information when reporting, applying for or engaging in child-related work—a breach of a paedophile restraining order; and there is (as there often is) provision for other offences to be prescribed by regulation.

Extended supervision orders can also be imposed on an offender who has been convicted and imprisoned for a serious offence of violence. The term 'serious offence of violence' is defined in section 83D(1) of the Criminal Law Consolidation Act as:

…an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more…where the conduct constituting the offence involves—

(a) the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or

(b) serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or

(c) perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to [above].

So these are not nice people we are talking about. Currently, before making an extended supervision order, the Supreme Court must be satisfied that the offender is a high-risk offender and poses an appreciable risk to the safety of the community if not supervised under that extended supervision order.

Before making an extended supervision order, the Supreme Court must direct that at least one qualified medical practitioner examine the high-risk offender and report to the court on the results, including: for a serious sexual offender, an assessment of the likelihood of the offender committing a further serious sexual offence; or, for a serious violent offender, an assessment of the likelihood of the offender committing a further serious offence of violence. The paramount consideration of the Supreme Court in determining whether to make an extended supervision order is, of course, the safety of the community.

At the moment, in determining whether or not to make an extended supervision order, the Supreme Court must also have regard to a whole range of matters, including but not limited to:

the likelihood of the offender committing a further serious sexual offence or serious offence of violence if not supervised under an extended supervision order;

the report of any medical practitioner furnished to the court;

any report prepared by the Parole Board;

any report required by the court—this can include the results of any statistical or other assessment furnished to the court as to the likelihood of persons with history, or characteristics similar to those of the respondent, committing a further relevant offence;

any relevant evidence or representations that the offender may decide to put to the court;

any treatment or rehabilitation program in which the offender has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;

in the case of an offender released on parole, the extent to which he or she has complied with the conditions of his or her release on parole;

in the case of an offender subject to an existing extended supervision order, the extent to which he or she has complied with the terms of that extended supervision order;

in the case of an offender who is a registerable offender—that is, within the meaning of the CSOR Act—the extent to which he or she has complied with any obligations under that act;

the circumstances and seriousness of any offence in respect of which the offender has been found guilty according to his or her criminal history and any pattern of offending behaviour disclosed by that history; and

any remarks made by the sentencing court in passing a sentence.

As I have said, the extended supervision order legislation made by the previous government, brought to this place by the member for Enfield and ultimately supported by both houses, firmly focused on protecting the safety and wellbeing of the community; indeed, it was its paramount concern. The Supreme Court is therefore empowered to make, on application from the Attorney, an extended supervision order against the high-risk offender who poses an appreciable risk to the safety of our community.

Once such an order is made by the court, the following conditions apply: the person subject to the order must not commit any offence, the person subject to the order is prohibited from possessing a firearm or ammunition, and the person subject to the order is prohibited from possessing an offensive weapon, unless it is deemed that the carriage of an offensive weapon is for some reason necessary, although, I cannot see why that would be the case. I cannot understand why that provision was made.

It also makes clear that the person must be under the supervision of a community corrections officer, must of course obey the reasonable directions of a community corrections officer and must submit to such tests as the community corrections officer may reasonably require. This may be drug or alcohol testing or it may be, in some cases, tests for gunshot residue and the like. Of course, the person on such an order must accept any other condition that the court thinks fit and specifies in the order.

There is also an expectation that the offender must comply with any condition imposed by the Parole Board, such as requiring the person subject to the order to reside at a specified address, to undertake such activities and programs as determined from time to time by the Parole Board or to be monitored by the use of an electronic device. There is whole list of other possible conditions. This all illustrates the types of people we are talking about and the original need for the Criminal Law (High Risk Offenders) Act. These are serious offenders and the types of people from whom our community deserves absolute protection.

Before we go on, it is important to note that an extended supervision order can only remain in force for a maximum of five years, or such lesser period as the Supreme Court determines, and the Parole Board has the right to vary and revoke conditions of extended supervision orders that are set by the board. It is also important to note that the stated aim of extended supervision orders, as I have said, is to provide a mechanism for extended supervision of those types of offenders who pose an ongoing high level of risk to the safety of the community, so, rather than being a punishment for past conduct, they are designed unapologetically to address future conduct.

However, the legislation in its final form, as it passed the Legislative Council, does not impose any particular custodial penalty for breaches of the extended supervision order. It does of course provide for ongoing detention orders to be made if there are breaches of the extended supervision order; that is, the Supreme Court may order that the offender spend up to the duration of the order in detention, but this does not constitute a criminal offence and it clearly does not always achieve the desired outcome.

Creating a standalone offence of breaching an extended supervision order to sit alongside the ongoing detention order provisions sends a very clear message to the courts that people who breach extended supervision orders, particularly those who regularly and habitually breach such orders, are criminals and should be treated as such and that imprisonment for repeated breaches should be the norm, rather than the exception.

This bill inserts section 14A, which makes it an offence to breach a supervision order. This provision provides that a person who, without reasonable excuse, contravenes or fails to comply with a condition of a supervision order is guilty of an offence punishable by, for a first offence, imprisonment of two years or, for a subsequent offence, imprisonment for five years.

Members may remember the very high-profile case of Luke Deane Brandon. Brandon was arrested on Tuesday 29 October 2019 after a particularly violent crime spree. At the time of his arrest, he was the subject of an extended supervision order and had, just days before, cut off his electronic monitoring bracelet. In fact, he was wanted on a Parole Board warrant for this breach. Brandon had breached his extended supervision order numerous times in the past and was each time released back into the community on a continuing order.

At the time, the ABC reported on Brandon's previous criminal history. They detailed multiple convictions for assault, aggravated robbery, theft and weapon use. The ABC report went on to say that in 2015 Brandon threatened to kill a person in the passenger seat of a car with a kitchen knife while he was driving recklessly. They further said that Brandon had breached the terms of multiple supervision orders by testing positive for methamphetamine and repeatedly cutting off his electronic monitoring bracelet.

Brandon's crime spree in late 2019 included carjackings, a high-speed chase, the ramming of a police car, a petrol drive off and a home invasion and car theft, where the victim was an elderly woman. Brandon's continuing breach of his extended supervision order led to significant community concern and when it became clear that, unlike other jurisdictions, the Criminal Law (High Risk Offenders) Act does not detail penalties for breaching extended supervision orders, there were calls from all quarters for tougher penalties for such breaches.

Breaches merely resulted in court appearances, where the order is continued or discontinued or, in some cases, an ongoing detention order is put in place. When one looks at the history of breaches such as Brandon's one can only come to the conclusion that the act was not working as intended and that the community expectation is that serious breaches of extended supervision orders, which are put in place specifically for the purpose of public safety, are considered serious criminal offences, particularly if they are repeated time and time again. Offenders like Brandon have no regard for public safety. I commend the bill to the house.

Time expired.

Debate adjourned on motion of Hon. D.C. van Holst Pellekaan.