Criminal Law Consolidation (Interference With Electronic Monitoring Device) Amendment Bill

Introduction and First Reading

Mr ODENWALDER (Elizabeth) (11:06): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

Mr ODENWALDER (Elizabeth) (11:06): I move:

That this bill be now read a second time.

Electronic monitoring of offenders, as we all know in this place, can be an extremely effective alternative to imprisonment. Its use has undoubtedly grown in recent years, not just in South Australia but across almost every jurisdiction. The use of this technology, of course, comes with a certain amount of risk.

I am sure we all have an idea of what electronic monitoring is: when an offender who is placed on some sort of order, agreement or bond is fitted with usually an electronic monitoring bracelet around the ankle, which is monitored generally by the Department for Correctional Services. The Department for Correctional Services' website describes their use in this way, and I quote:

Electronic monitoring for the Department for Correctional Services is undertaken by the Intensive Compliance Unit. The Unit operates 24/7 and is made up of a team of Monitoring Centre Officers who respond to alerts, and Intensive Compliance Officers who respond in the field to undertake drug testing, breath testing, equipment installation; as well as checks and home visiting of offenders.

The [GPS] electronic monitoring system used by the Department [of Corrections] provides access to real time data allowing for rapid responses by corrections and/or the police.

The system also has the ability to detect offenders who attempt to or do remove their ankle bracelet and a tamper alert is raised. This enables the ICU and police to immediately respond.

Time and time again we have seen community outrage, and rightly so, when offenders simply cut the bracelet and walk free until the breach is picked up and a warrant is issued. What is more infuriating for some in the community, and this is certainly a common perception, is that these offenders seem to do this time and time again and often with little consequence.

While the bracelet removal certainly constitutes a breach of whatever order, licence or parole agreement is in place, there is no actual criminal penalty besides perhaps property damage for tampering or removal of an electronic monitoring device. Put simply, this bill creates a new offence, with a new division 5A within the Criminal Law Consolidation Act, of interfering with an electronic monitoring device. It states that a person subject to a condition under a prescribed law that the person be monitored by use of an electronic device is guilty of an offence if the person removes, damages or otherwise tampers or interferes with the device. It provides for a maximum penalty of seven years for such an offence.

This is a simple provision and it is a high penalty, I admit, but offenders who are wearing these devices are afforded a great deal of trust by the community. Electronic monitoring can be seen as an alternative option to custody, so in that sense it should be given the respect it deserves by the offender who is offered this option. I believe that creating such a criminal sanction is in line with community expectations.

Last week we saw a report by Channel 7's Hannah Foord that within the Department for Correctional Services up to five offenders per week were tampering with or cutting off their ankle bracelets. We were told that a $7 million replacement program would solve this ongoing problem, but of course it has not. Now we have more offenders than ever before wearing these devices. In 2017, the department of corrections had 766 offenders subject to some form of electronic monitoring. Currently, that number is more than 1,000.

This is not at all a criticism of the Department for Correctional Services, nor indeed any of the other agencies that are charged with monitoring and dealing with our criminals. It simply reflects that offenders often do not take this type of punishment seriously. At present, in all cases I believe, no standalone offence exists for tampering with, removing or cutting off an electronic monitoring device. In most cases, it simply constitutes a breach of bail, a breach of an order or a breach of parole, and is generally punishable by the arrest on warrant and then bringing the offender before the courts or the Parole Board for some sort of reassessment. Clearly, this is not enough of a deterrent.

If anyone saw that Channel 7 report, you could see the attitude of many criminals towards this type of punishment. They simply do not take it seriously. These ankle bracelets are an excellent tool if you can convince the offender to actually keep them on.

When and where do we use them now? Mr Speaker, as you will be aware, electronic monitoring devices are used across the criminal justice system as a means of monitoring offenders and, in many cases, negating the need for imprisonment. This is often a good thing for many reasons but, as I said, it only works if the offender is disincentivised to take the thing off, and that is what this bill attempts to do.

At present, electronic monitoring devices are used in the following circumstances, and it is important to understand that the prisoner is a prisoner. The electronic monitoring device may give the impression of a certain type of freedom, but the wearer is in most cases detained. That is why it is important to understand their context within the criminal justice system.

First of all, electronic monitoring bracelets are sometimes used in bail agreements. Of course, bail is a general presumption in our criminal law. It is generally presumed that a prisoner will get bail unless there are concerns that the prisoner may, for instance, be a flight risk, may reoffend in the same way or commit an extension of the original offence. We do have presumptions against bail for particularly serious offences, but in most cases bail is presumed and conditions are placed upon the alleged offender, and in some cases that does include electronic monitoring.

Electronic monitoring bracelets are mostly used across the formal correctional services system in a range of ways. I am advised that they are used when a prisoner perhaps goes on a leave of absence, when they are perhaps transported from one facility to another and where an added layer of security is necessary for that temporary use. However, far more commonly, electronic monitoring devices are used in home detention.

By virtue of the act, the chief executive of Corrections has an absolute discretion to release a prisoner from prison to serve a period on home detention. However, this discretion is subject to the following limitations: a person who is serving or liable to serve a sentence of indeterminate duration and does not have the non-parole period fixed cannot be released on home detention. Any limitations determined from time to time by the minister may include without limitation the exclusion of prisoners sentenced for a specified class of offence or any other class of prisoners from release on home detention.

The release of a prisoner on home detention is subject to the following conditions: a condition requiring the prisoner to remain at the prisoner's residence during the period of home detention and not to leave the residence at any time during that period except for the following purposes: to go to work, attendance at remunerated employment at such times and places that are approved by the authorised officer; urgent medical or dental treatment for the prisoner, obviously; attendance at a place for ongoing assessment, whether this is for the person's mental or physical health, or perhaps for an intervention program or any other type of education, training or instruction as approved or directed by the authorised officer to whom the person is assigned.

It goes without saying that the prisoner must be of good behaviour during this period of home detention. The prisoner must obey the lawful directions of the authorised officer during that period of home detention and the prisoner must not possess a firearm or ammunition. The prisoner must subject him or herself to various types of tests—drug and alcohol tests, and also things like gunshot residue tests—to ensure there is a secondary level of compliance with the order. A condition may well be, and often is now, that the prisoner be monitored by use of an electronic device. So that is home detention.

The other very common use of electronic monitoring devices in the corrections system is when a prisoner is released on parole. The parole system is different, of course, for those serving life sentences and those who are serving less than life sentences. Parolees who are serving a life sentence are subject to the following conditions. They are prohibited from committing any offence. They must not possess a firearm or ammunition or any part of a firearm. They must not possess an offensive weapon. Again, the act includes this rather intriguing caveat that they may possess an offensive weapon under some circumstances.

The prisoner must remain under the supervision of a community corrections officer and obey the reasonable directions of that community corrections officer and, again, submit to tests without notice for things like drugs, alcohol, gunshot residue and so on. A prisoner must also reside at a specified premises and undertake whatever rehabilitation and reintegration programs determined as necessary by the Parole Board. Importantly, the Parole Board must consider imposing a condition on the release on parole of a prisoner serving a life sentence that the prisoner be monitored by use of an electronic device to be effective until the expiration of that period of parole.

For parolees who are not serving a life sentence, the conditions are a little bit different. The prisoner is again prohibited from committing any offence or from possessing an offensive weapon—again, with that intriguing caveat that they may under certain circumstances possess offensive weapons. The prisoner must be under the supervision of a community corrections officer and must obey the reasonable directions of that community corrections officer and may be subject to any other conditions—again, including a condition that the prisoner be monitored by use of an electronic device.

Obviously, as the Attorney well knows, if the prisoner is sentenced to imprisonment for a child sexual offence, the board has to consider other conditions like preventing the prisoner from loitering without reasonable excuse at or in the vicinity of a school, public toilet or a place in which children are regularly present. There is a condition preventing the prisoner from engaging in remunerative or voluntary work with children, a condition preventing the prisoner providing or offering to provide accommodation to a child who is not related to the prisoner and a condition requiring the prisoner on making an application for employment to provide the prospective employer with a report about the prisoner's criminal history.

In the case of these prisoners, there is a condition which requires the prisoner to be monitored by use of an electronic monitoring device. As well as parole home detention bail, there are also provisions within the Sentencing Act which may provide for the wearing of an electronic monitoring device including release on licence and also intensive corrections orders.

This is that where a court has imposed a sentence of imprisonment on a defendant of a term that is two years or less, the court considers that the sentence should not be suspended, and the court determines there is a good reason for the defendant to serve the sentence in the community while subject to such intensive correction order, the court may order that the defendant serve the sentence in the community while subject to this order.

This is essentially in circumstances where, even though a custodial sentence is warranted and there is a moderate to high risk of the defendant reoffending, any rehabilitation achieved during the period that would be spent in prison is likely to be limited compared to the likely rehabilitative effect if the defendant were instead to spend that period in the community while subject to intensive correction. In these cases, the electronic monitoring system is absolutely essential.

These are the important tools at the disposal of Corrections and other agencies, and in many ways and for many good reasons their use is to be encouraged. They are also used importantly in the monitoring of prisoners released under extended supervision orders.

As I said earlier, extended supervision orders are orders that can be placed on those offenders who have served their full term of imprisonment or parole but who are deemed to be such an appreciable ongoing risk to the community that they require ongoing supervision. As I have also said, before 2015 society had no choice but to let certain high-risk offenders roam free once they had finished their sentence and/or parole conditions.

I have discussed extended supervision orders in a previous debate today, and in many ways this bill should be seen as something of a package with the Criminal Law (High Risk Offenders)(Breach of Supervision Order) Amendment Bill. Really, they both grew out of the community outrage around the crime spree conducted in late 2019 by Luke Deane Brandon, who was at the time the subject of an extended supervision order and who had, at many times, removed or cut off his electronic monitoring device.

At the time, the Attorney promised she would review extended supervision orders. I know that some work has been done around serious sexual offenders in terms of extended supervision orders, but I am not aware of any work that has been done around serious violent offenders, although I stand to be corrected further in this debate.

I do not believe this is a silver bullet, but I do think it strengthens the bail and home detention and parole systems and gives prosecutors another tool when dealing with people who deliberately and repeatedly remove their electronic monitoring device. I commend the bill to the house.

Debate adjourned on motion of Hon. V.A. Chapman.