Legislative Council Fifty-First Parliament, Second Session (51-2) 51 2 Parliament of South Australia Legislative Council published Bills Statutes Amendment (Young Offenders) Bill STATUTES AMENDMENT (YOUNG OFFENDERS) BILL Introduction and First Reading Introduction and First Reading Received from the House of Assembly and read a first time. Second Reading Second Reading The Hon. P. HOLLOWAY Legislative Council Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning The Hon. P. HOLLOWAY (Minister for Police, Minister for Mineral Resources Development, Minister for Urban Development and Planning) (13:01): I move: That this bill be now read a second time. I seek leave to have the second reading explanation inserted in Hansard without my reading it. Leave granted. This Bill makes some amendments to our juvenile justice laws as a result of the Cappo Report ‘To Break the Cycle'. The Government has decided to take action in response to every one of the 46 recommendations in the Report. Not all of them, however, require legislation: most do not. This Bill derives from recommendations two, seven and eight of the Report. Recommendation eight of the Cappo report concerns adults who commit crimes in the presence of young people. The report finds that ‘the notion of imposing harsher sentences on adults who commit crimes in the presence of minors is sound', although individual circumstances need to be considered. Based on recommendation eight, clause 4 amends the aggravated-offence provision of the Criminal Law Consolidation Act. It is already an aggravating factor that an offence is committed in company. The amendment makes clear that this includes the company of a child. The effect of the aggravated-offences laws is that, where an aggravating factor exists, for an offence that is susceptible of aggravation, a higher penalty can be imposed. Thus, for example, robbery committed in circumstances that do not include an aggravating factor carries a maximum penalty of 15 years. If an aggravating factor applies, the maximum penalty is life. That, then, is the potential penalty if a person commits the offence of robbery in company with a child. Clause 5 likewise makes it a factor relevant in sentencing that the offence was committed in circumstances where it could be seen or heard by a child, other than a child victim. The latter exclusion is because it is a separate, aggravating factor, that the offence is committed against a child under 12 or a child living with the offender. The Bill also addresses Cappo's recommendation two, which has ‘urgent action' status. That recommendation proposed that the objects of the Young Offenders Act be amended to strengthen the requirement to take account of public safety when sentencing serious repeat offenders. The strengthening of these provisions, Cappo said, should occur in the context of a stronger focus on rehabilitation. The objects of the Act already refer to public safety. Section 3(2)(c) embodies the statutory policy that ‘the community, and individual members of it, must be adequately protected against violent or wrongful acts'. That is a general policy that must be applied in exercising any of the powers conferred by the Act, including the choice of sanctions for offences. There is no need to restate this policy, but it is useful to make specific reference to the case of the young offender who, because he poses a risk to public safety or for other reasons, is being tried as an adult. That can occur under section 17 of the Act and will also be possible under proposed new section 17A. Thus, clause 6 amends section 3 to provide expressly for the case where a court is to sentence a youth who is being dealt with as an adult. The clause directs the court to consider general deterrence, public safety and rehabilitation. This is an attempt to balance two key factors noted by the Cappo's recommendation: protection of the public and rehabilitation of the youth. Recommendation seven considers the circumstances in which a youth should be tried in the adult courts. It is already the law that youths can be tried as adults in some cases, as provided in section 17 of the Young Offenders Act. This can occur where the youth is charged with homicide or attempted homicide. It can occur at the youth's own request where the offence is indictable. It can also occur on the application of the prosecution, for grave offences or where the offence is part of a pattern of repeat offending. The Cappo Report recommends the use of these provisions where there is serious concern that the actions of a young person are putting the public at risk but does not recommend a change to section 17. The Government has considered this recommendation. Clearly, we need to be cautious about any amendments that could result in young people being treated more harshly by the justice system. There are good reasons to prefer diversionary measures if the youth is likely to respond to them. The fact is, however, as the Cappo Report notes, that a large share of youth offending is attributable to a small group of serious repeat offenders. For whatever reason, and the Government accepts Cappo's finding that a background of abuse or neglect may play a part, some of these young people fail to respond to the cautionary and diversionary measures that characterise the youth-justice system. They go on offending, time after time, heedless of warnings and of consequences. These youths present a serious risk to public safety. There are cases in which this risk is so serious that the youth ought to be tried directly in the adult courts without the involvement of the Youth Court. This Bill would therefore, by clause 8, permit the Director of Public Prosecutions, in the case of a major indictable offence alleged against a youth who presents a risk to the public, to lay charges directly in the Magistrates Court. A preliminary examination will be held in the ordinary way and the youth may, if the Magistrates Court sees fit, be committed for trial just like an adult defendant. The Bill sets out the factors that the Director of Public Prosecutions and the magistrate must consider in deciding whether to take this action. Those factors deal with whether the offence is serious, whether it is part of a pattern of repeat offending and whether the youth has a history of non-compliance with legal requirements. The Bill has, then, both protective and punitive aspects. By clauses 4 and 5, the Bill seeks to protect children from being drawn into or witnessing offences. It is wrong to involve children in crime. It harms children if the adults around them, to whom they look for guidance, send the message that crime is acceptable. It sets them on a path that will only cause harm to them and to the public. Therefore, under this Bill, anyone who involves a child in the commission of an offence and any adult who commits an offence in the presence of a child can expect that to be reflected in a higher penalty. By clause 6, the Bill seeks to address the special case of the serious repeat young offender who is being tried as an adult. It directs the court as to the factors to be weighed in sentencing in that case. As always, it is a matter for the sentencing court to work out how those factors should be weighed in the particular case. I commend the Bill to Members. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions These clauses are formal. Part 2—Amendment of Criminal Law Consolidation Act 1935 4—Amendment of section 5AA—Aggravated offences Section 5AA of the principal Act sets out the circumstances surrounding the commission of an offence that make an offence an aggravated offence. One such circumstance is that the offender committed the offence in company with one or more other persons. It is proposed to clarify this provision by adding the phrase including persons who are children. It is also proposed to include in this section an additional aggravating circumstance. In the case of an offence constituted under Part 7B (Accessories) of the principal Act where the principal offence is an aggravated offence, the fact that the principal offender was, to the knowledge of the offender under that Part, a child will be an aggravating circumstance. Part 3—Amendment of Criminal Law (Sentencing) Act 1988 5—Amendment of section 10—Matters to be considered by sentencing court It is proposed to include an additional matter in the list of matters to which a court when sentencing should have regard. When sentencing an adult offender for an offence committed in circumstances where the offending conduct was seen or heard by a child (other than the victim, if any, of the offence), the court should have regard to those circumstances. Part 4—Amendment of Young Offenders Act 1993 6—Amendment of section 3—Objects and statutory policies Current subsection (2a)(b) provides that when imposing sanctions for illegal conduct on a youth who is being treated as an adult, regard should be had to the deterrent effect the proposed sanction may have on any other youths. It is proposed to reconfigure paragraph (b) to add the direction that regard should also be had to the balance to be achieved between the protection of the community and the need to rehabilitate the youth. 7—Insertion of Part 4 Division A1 It is proposed to insert a new Division A1 (Interpretation) at the beginning of Part 4. This Division would provide that, for the purposes of Part 4, the matters listed in new section 15A must be taken into consideration by the Director of Public Prosecutions (DPP) or the Magistrates Court (as the case requires) in deciding whether a youth poses an appreciable risk to the safety of the community. Those matters are as follows: the gravity of the offence with which the youth is to be charged; if the offence to be charged is part of a pattern of repeated offending by the youth—that fact and the circumstances surrounding the alleged offence; the degree to which the youth has previously complied with any undertaking entered into by, or requirement or obligation imposed on, the youth under the principal Act or any bail agreement; if the youth has previously been detained, the behaviour of the youth, and any rehabilitation of the youth, while so detained; if the youth has previously been released on licence—the degree to which the youth complied with any condition specified in the licence; any other matter that the DPP or Magistrates Court (as the case may be) thinks fit in the circumstances. 8—Amendment of section 16—Where charge is to be laid It is proposed to add to current section 16 an additional subsection to allow the DPP to lay a charge of a major indictable offence against a youth before the Magistrates Court rather than the Youth Court if the DPP is of the opinion that the youth should be dealt with as an adult because of the appreciable risk the youth poses to the safety of the community. 9—Amendment of section 17—Proceedings on charge laid before Youth Court The amendments proposed to this section are consequential. 10—Insertion of section 17A 17A—Proceedings on charge laid before Magistrates Court If a charge of an offence against a youth has been laid before the Magistrates Court (see the proposed amendments to section 16), Part 5 of the Summary Procedure Act 1921 will apply to those proceedings. At the conclusion of the preliminary examination, the Magistrates Court may— (a)	if of the opinion that the youth poses an appreciable risk to the safety of the community—commit the youth for trial or sentence (as the case requires) to the Supreme Court or the District Court; (b)	in any other case—commit the youth for trial or sentence (as the case requires) to the Youth Court. 11—Amendment of heading to Part 4 Division 2 This amendment is consequential. Debate adjourned on motion of Hon. J.M.A. Lensink. [Sitting suspended from 13:02 to 14:17]