Criminal Law Consolidation (Throwing Objects at Vehicles) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 25 March 2020.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:19): The bill seeks to amend the Criminal Law Consolidation Act 1935 to increase the maximum penalty for throwing rocks and other missiles at vehicles on a roadway from five to 10 years. The bill is identical to the Criminal Law Consolidation (Throwing Objects at Vehicles) Amendment Bill 2018, which was introduced by the member for Elizabeth in June 2018.

There are two relevant offences pertaining to rock throwing. Under section 32A of the CLC Act, it is an offence to throw or drop prescribed objects on vehicles, whether the vehicle is moving or stationary. The other relevant offence is section 51 of the Summary Offences Act 1953. Under this section, it is an offence to, without lawful excuse, throw a missile intending to injure, annoy or frighten any person or damage any property. The maximum penalty for this offence is two years' imprisonment if intent is proved or one year if the person is merely reckless as to the possibility of damage, etc., occurring.

In addition to a penalty of imprisonment, monetary penalties can also be imposed in accordance with section 119 of the Sentencing Act 2017. For example, if the offence against section 32A of the CLC Act is being prosecuted in the Magistrates Court as a minor indictable offence, it could also attract a penalty of a fine of up to $10,000. If the offence is being prosecuted in the District Court at the election of the defendant, it could attract a fine of up to $35,000.

The bill seeks to amend section 32A of the CLC Act—Throwing objects at vehicles, to increase the penalty from five years to 10 years' imprisonment. The consequence of such an increase is that the offence moves from being a minor indictable to a major indictable offence. Minor indictable offences are defined in section 5 of the Criminal Procedure Act 1921 as offences not punishable by imprisonment and having a maximum fine exceeding $120,000, offences with a maximum imprisonment of five years, or certain categories of offences with a maximum imprisonment greater than five years, such as an offence of recklessly causing harm. Minor indictable offences are generally dealt with in the Magistrates Court, unless the defendant chooses to have the charge dealt with in a superior court.

The effects of the offence becoming a major indictable offence include that major indictable offences must be dealt with in the District Court or Supreme Court. This will have flow-on effects for prosecuting agencies as a result of bringing the offence into a higher cost jurisdiction. It is also possible that the police may instead choose to exercise their discretion and charge offenders with the lesser offence under the Summary Offences Act, which only attracts a penalty of two years' imprisonment, rather than the more serious offence.

If police choose to charge the major indictable offence, this will result in increased costs for the Office of the DPP as prosecutions in the District Court and Supreme Court are conducted by that office. When a monetary penalty is imposed under section 119 of the Sentencing Act, the monetary penalties would increase to $35,000 where the matter is heard in the District Court and $75,000 if the matter is heard in the Supreme Court.

Let me address young offenders. An increase in penalty may have implications for the way that a young person charged with an offence under section 32A of the CLC Act is dealt with by the courts. Other than where a young person is being sentenced as an adult, section 23 of the Young Offenders Act provides that a young person cannot be sentenced to imprisonment and the maximum sentence is three years' detention. It seems that in most circumstances where a young person is charged with an offence under section 32A, the bill will have no application. The maximum penalty for a young person would remain three years' detention.

However, shifting the penalty from one of minor indictable to major indictable means that the DPP would have the option to try the youth as an adult and lay charges before the Magistrates Court where the DPP is of the opinion that 'the youth possesses an appreciable risk to the safety of the community and should therefore be dealt with in the same way as an adult'. Where a youth is tried as an adult, they can be sentenced as an adult. I had not consulted with the DPP to obtain any views as to the circumstances in which such an application would be made or likelihood of such an application being made.

Let me address other offences. It should also be noted that, if a rock is thrown and harm is caused, there are other offences in the CLC Act with higher penalties that could be charged. For example, there is already a major indictable offence of acts endangering life or creating risk of serious harm in section 29 of the CLC Act that could be charged in these circumstances. A person who, without lawful excuse, does an act or omission knowing that the act or omission is likely to endanger the life of another and intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered, is guilty of an offence and liable to imprisonment for 15 years for a basic offence and 18 years for an aggravated offence. Lesser penalties apply in relation to serious harm or harm.

In addition, a person who recklessly throws a rock onto the Southern Expressway and causes harm through that action could be charged with causing harm under section 24(2) of the CLC Act. The maximum penalty for recklessly causing harm is five years for a basic offence and seven years for an aggravated offence. If a person intends to cause harm through their actions, the penalty increases to 10 years' imprisonment for a basic offence and 13 years' imprisonment for an aggravated offence. There is no suggestion that penalties currently being handed out for this offence are too lenient.

Let me now address the police response and data. SA Police responded to rock-throwing incidents on the Southern Expressway by launching Operation Watercolour on 7 June 2018, which specifically targeted rock throwers. SA Police advised that mounted police, dog units, bicycle police, motorcycle police and patrols, both overt and covert, monitored the expressway. Since 2018, there have been numerous safety upgrades made to the bridges over the Southern Expressway to reduce the incidence of rock throwing and, with the addition of CCTV cameras, the prevalence of confirmed events has reduced significantly.

Statistics relating to the incidence of rock throwing on the Southern Expressway have been collated by police since 7 June 2018, and this is what they are: in 2018, 14 confirmed rock-throwing events were recorded. In the following 2½ years, between 2019 and 31 July 2021, there were only four confirmed rock-throwing events reported. In light of all those circumstances, may I thank the police for their important work in actually, on the ground, curtailing what was a common problem. We appreciate their work. There is a kaleidoscope of other offences available for prosecution without the need for this new offence and therefore I will be opposing the bill.

Mr PICTON (Kaurna) (11:25): I will speak very briefly. This is necessary legislation to increase the penalties, to increase the deterrent for what are dangerous, awful incidents that are happening regularly on the Southern Expressway in the southern suburbs, and potentially in other communities as well. There was a spate of this a few years ago, but it has not stopped.

I can inform the house that only recently I met with a constituent who had a rock thrown at them. This was a driving instructor who was helping a young woman learn to drive for the first time. They were driving on the Southern Expressway, doing their driving lesson, and a rock was thrown from the bike path adjacent to one of the bridges. There is still opportunity for it to happen. Unfortunately, there are still people who will do the wrong thing, and will seek to cause other people harm, that is putting lives at risk.

We cannot have any more of these incidents happening, and that is why I support the member for Elizabeth's motion and bill in this house to increase the penalties, to set a clear deterrent that this is not acceptable and that it must be punished to the full extent of the law. We need to increase the penalties to give the best possible chance for people to be brought to justice and punished accordingly.

Mr ODENWALDER (Elizabeth) (11:27): I realise time is running short, so I will be very brief. I want to thank all members for their contributions: the Attorney and the member for Kaurna. I do acknowledge the Attorney's comments about other offences that could be charged in certain instances, depending on the circumstances of the rock throwing. Often in this place we increase penalties for punishment reasons, often we increase them for deterrence and very often a mixture of them both.

In my mind, this bill is clearly about deterrence. It is about a specific offence. It is about a specific set of circumstances. I believe that doubling the penalty has a significant deterrent effect—and that is the main purpose of this bill. It is a specific offence. There is plenty of research to show that, while incremental increases in penalties have a fair but negligible effect on deterrence, if you increase penalties to a large extent, and in this case double the penalties for the specific offence, it has a deterrent effect.

For that reason, I think the penalties for this particular offence, for this particularly dangerous offence—and we are talking about a specific location too—should act as a deterrent. I believe that it would act as a deterrent, and for that reason I urge members to vote for this bill.

The house divided on the second reading:

Ayes 21

Noes 23

Majority 2

Second reading thus negatived.