CRIMINAL LAW (SENTENCING) (SENTENCING CONSIDERATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading

(Continued from 15 September 2011.)

The Hon. D.G.E. HOOD (17:40): My apologies for being out of the chamber a moment ago, extremely rare that it is.

The Hon. J.S.L. Dawkins: Unlike some others.

The Hon. D.G.E. HOOD: Indeed. Well, rare to miss the call is perhaps a better way of putting it. I rise to indicate Family First's position on this important bill. This is a bill that is ostensibly designated to formalise in legislation what is already an accepted practice in our courts, that is, the practice of awarding discounts to defendants who plead guilty at the earliest available opportunity.

To summarise the bill and the minister's contribution, the bill provides a discount of up to 40 per cent for pleading guilty within four weeks of the defendant's first scheduled appearance. There is a discount of up to 30 per cent for a guilty plea after four weeks from the defendant's first scheduled appearance but before the committal for trial. Finally, there is a discount of up to 20 per cent for a guilty plea in the period after the committal and up to 12 weeks from the arraignment date set at committal.

Under the bill there will not ordinarily be any discount in the higher courts if a guilty plea is entered in the period after 12 weeks of the first arraignment date and up to, and including, the first trial date. It sounds complicated, but it is not.

The question for Family First and all members of this chamber, of course, is whether it is appropriate to put rigid systems in place to deal with the discount process, as this bill proposes, or whether it is appropriate for our judicial officers to retain flexibility in determining the appropriate reduction. Certainly our courts deal with cases that come in a wide variety of shapes and sizes and they confront whole spectrums of different issues on a daily basis. I think that in itself is certainly an argument for allowing judicial discretion.

On the other hand, there is also a valid argument, in my view, for uniformity in sentencing practices. Indeed, members would be aware that I have raised in the past the need to ensure as much as is possible and practical that all judicial officers impose similar sentences for similar offences.

Some time ago, for example, I discovered through freedom of information that one particular magistrate sentenced 90 defendants to imprisonment on an offence of theft and another magistrate sentenced only one offender to imprisonment for the same offence, and that was for a period of only three weeks. Clearly, the level of sentencing varies dramatically across our courts. Both magistrates heard a similar number of theft cases in that particular example, so it is not a statistical anomaly; it is, in fact, an anomaly.

Given that both magistrates heard many hundreds of cases in this particular example, one might expect that any peculiarities in the cases heard would even themselves out or allow for any statistical anomalies, if you like. Parity in sentencing is important, and it seems that we are not there yet.

Nevertheless, there are certain issues in this bill that I think require much closer scrutiny. My general position would be to support such a bill because I think it is a step in the right direction but, as I say, there are a number of issues that I think need to be more closely scrutinised, and no doubt we will do that during the committee stage. I have already raised a number of these issues with the minister directly via correspondence through my office, and I understand that he is in the process of drafting a response.

The most significant issue from Family First's perspective is that this bill has the capacity to be much harder or much tougher, if you like, on the poor, who are reliant on Legal Aid, than it would be on others who can afford private lawyers.

This bill does not take into account current blowouts in legal aid application times. Legal aid often now takes two to three weeks to process applications for legal aid. If there is a problem in the application or, if there is an initial refusal of aid and it must be appealed, then this time period can easily blow out to four or six weeks waiting for an assessment of aid—that is, an approval essentially of whether or not legal aid will be provided.

Defendants who can afford private representations straight away for their early court attendances can have their matters dealt with and will be eligible for the discount under this proposed legislation. Low income defendants, on the other hand, who are reliant on legal aid and must wait weeks or months before having a lawyer assigned to them under that system, will just by necessity under this bill face the potential of higher penalties. That is certainly something that is unfair.

We are also concerned with the reference to delays being measured in weeks. In the new section 10C(2) the bill certainly refers to delay by reference to weeks, but this is problematic because adjournments are not always for less than four weeks. In a busy court, for example, a defendant's matter may be adjourned on the first occasion for more than four weeks, meaning that they would automatically be disqualified from attaining the reduction after only one court date.

What takes up the courts' time and prosecution's time, and therefore costs the community, is largely the number of court appearances, not the time it takes—and certainly not the number of weeks as is proposed under this bill. We would therefore argue that a reference to the number of court appearances, rather than the number of weeks it takes, will be the most appropriate measure of the delay. The truth is that a magistrate may simply set the next hearing out for a longer period of time, and that is something beyond the control of the defendant, which has an impact under the provisions of this bill.

It is probably widely known that I do not always agree with the Law Society's views regarding bills like these, but the Law Society does raise a worthwhile concern in this instance regarding cases where there may be errors in the prosecution case or a reasonable dispute of fact that may be resolved before a guilty plea can be entered. A defendant certainly should not be penalised for an error in the prosecution case, or the delay in having that error rectified, as this bill would do.

Related to that is the unresolved question in the bill as to what happens if a prosecution case against the defendant is amended or if one or two counts on a multiple count complaint are withdrawn. We are forced to ask whether the clock starts ticking again regarding the discount process, or has the discount been lost to the defendant?

We are also open to the view that if a defendant is penalised in reference to how close they are to the matter being listed for trial that magistrates should be barred from listing that as for trial on the first or second court dates. This sometimes occurs, of course, and means that a magistrate could unilaterally disqualify a defendant from receiving a discount by listing a matter for an early trial. They may do this completely without any malice, and just as a simple matter of scheduling, which could work against the defendant.

Further, I am also concerned to hear the government's response to a complaint made by several bodies that this bill no longer leaves any disincentive to defendants proceeding with the trial on the trial date. Currently many magistrates are able to persuade a defendant to discontinue with a trial by offering a discount on the trial date—something that saves the community significant resources.

This bill will ensure that many defendants continue with the trial knowing that there is a chance they will defeat the charges on one hand if they proceed and on the other hand knowing that the penalty cannot be less if they admit their guilt. There is no longer any benefit for the defendant in pleading to the charge as there currently is.

With those concerns on record, I look forward to hearing the government's response. I indicate that Family First is genuinely open to supporting this bill. We like the general thrust of it, but I think there are some details that need to be addressed. While we are sympathetic to any measures designed to reduce the costs of the courts administration and other legal matters, we do not believe that defendants on low incomes should be placed in a worse position to those who are on better incomes. I indicate that we will listen carefully to the debate, and particularly the government's response to these particular issues, before making our final conclusion as to deciding which way we will go on this bill. However, I indicate that we are predisposed to supporting such a bill subject to those concerns being addressed.

Debate adjourned on motion of Hon. J.M. Gazzola.