CRIMINAL LAW (SENTENCING) (SENTENCING CONSIDERATIONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2011.)

The Hon. K.L. VINCENT (16:17): I want to briefly place on the record my reasons for opposing this bill. When I first picked up this bill I was a little appalled by the suggestion that we should tinker with what is normally considered our fundamental right, that is, a person's decision on how to plead, as a mechanism to clear up our clogged court system. However, I attempted to suspend my outrage—as I have had to learn to do quite well since coming into this job, as I am sure we all have—because I perused various second reading speeches and other research and got the impression that maybe I was being a little naive.

I, as does everybody else in this chamber, want our justice system to function and want to clear the backlogs and, as someone who is not an expert in the law per se, I thought it comforting that other people who had experience in law felt that this mechanism was acceptable. Perhaps, I thought, this is a method which is already used and is therefore acceptable; and, to some extent, this is correct. There is encouragement to plead guilty as early as possible already built into our justice system in South Australia.

However, as I looked further into the matter and was able to consider a more diverse range of perspectives, I began to realise that my original feelings of outrage could well be justified. At this stage I think that I must thank the Law Society's Ralph Bönig and criminal lawyer David Stokes for providing further information on this matter.

While we already encourage people to plead guilty as early as possible, I do not believe that we do this simply to save time in court. There are a myriad of reasons that an early guilty plea might be preferable. These reasons encompass everything from shielding victims from the trauma of giving evidence to ensuring defendants get the most suitable consequence for their crime and circumstance. It has been put to me—and I believe—that, in the scheme of things, saving the court's time is a very low priority reason for encouraging early guilty pleas. Despite this, our government has seen fit to treat the relationship between reduced sentences and saving the court time as a simple one.

The government is telling us that, if we encourage people to give a guilty plea early, or give up information in return for a sentence discount, we will whip through the court list and everything will be wonderful. Plainly, given the complex reasons for early guilty pleas, this simplistic sentiment is untrue. Once we start messing with the balance of sentencing, there might be all kinds of unintended fallout related to the other reasons that it might be good to plead guilty.

This government is attempting to pretend that the justice system is a straightforward beast. This is also untrue. It pains me to once again stand here and speak about why we should not play fast and loose with people's rights to justice.

Our government has a certain way of dealing with the justice system which involves characterisation of defendants as not deserving rights. We see that theme again with this bill, where our government is hoping that we will forget that it is important for someone to have the right to weigh carefully their decision of how to plead. If the government gets its way, lawyers will have no choice but to advise an early guilty plea, even when there is not necessarily enough information available for them to know the full details of the prosecution's case. There is no getting around the fact that, if we pass this bill, it will result in injustice for defendants and, in some cases, for victims, too.

Of course, this is of special interest to me because, as members are well aware, I am concerned about the rights of people with disabilities, in particular, who are in the justice system. Currently, a defendant who has an intellectual disability, for example, might be given special consideration when sentencing is being decided. For example, a judge might gather that they were unable to enter an early guilty plea because they were not offered enough support to understand the facts of the case or indeed present their evidence. I do not want these individualised considerations to be outlawed or discouraged in our court system, and the bill will obliterate this kind of flexibility.

Put simply, the government has identified a problem with the court system, and it is trying to solve the problem using an inappropriate tool—and I suspect that it was the cheapest and easiest tool to reach. It is like me getting a flat tyre on my car and then attempting to fix it by getting the engine serviced. I cannot support such an unsuitable measure, and I will not support this bill.

The Hon. S.G. WADE (16:23): I do not always enjoy getting bounced, but I am pleased in this case to be able to follow the Hon. Kelly Vincent because, as is often the case, Kelly brings a clear, fresh perspective. Perhaps, for some of us who have been involved in politics for longer than we care to remember, it is often challenging to have somebody who comes into the chamber and reminds us perhaps about what is more likely to be the view outside the building than inside the building. I will come back to the Hon. Kelly Vincent's comments when I reflect on what I anticipate would be the wider public's view of this bill.

I rise to speak on behalf of the opposition in relation to the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill 2011. I think it is important that we be clear that this bill is not about doing justice; it is about managing justice. It is about trying to ease the pressure on an overstretched and under-resourced system. That is not my political spin; it is the repeated claim of the Attorney-General in his second reading explanation in the House of Assembly on 24 March. Not once does the Attorney claim that providing a discount for an early guilty plea is in the interests of justice. The focus of the speech is on the impact of the timing of the plea in terms of the interests of the justice system.

Let me give three quotes indicative of this, and I certainly do not think they are the limits of them. In one place, the Attorney-General says:

A primary objective of the bill is to improve the operation and effectiveness of the criminal justice system by reducing delays and backlog in cases coming to trial.

In another place, the Attorney-General says, 'The problem of court delays is acute and complex.' In another place, he says:

This bill is a major step forward in this government's determination to address court delays. It sets a benchmark in Australia criminal justice reform.

The Attorney-General specifically uses the phrase 'Justice delayed is justice denied.' We need to make sure that justice discounted is not justice devalued.

In common law, a criminal sentence may be reduced in response to an early guilty plea. I am informed that that might be up to 33 per cent where the defendant pleads guilty at the first opportunity, and up to 50 per cent where the defendant pleads guilty at the first opportunity and gives evidence for the Crown.

What the government claims that this bill does is consistent with that established judicial sentencing practice to codify that current practice but, at the same time, limit the freedom of the courts within that practice. The government sees the benefit of this because the government claims that in 2009-10, late guilty pleas were the cause of 35 per cent of fixed High Court trial dates that had to be vacated—that is 308 out of 883.

The government claims that the courts are not maintaining a sufficient difference between the reduction of truly early guilty pleas and those closer to trial. It says reductions of 20 per cent and 25 per cent are not uncommon for pleas entered into within weeks of a trial, and some defendants even receive significant discounts for a guilty plea on the day of trial.

The bill provides for a series of discounts for pleas of guilty, graduated upon the timing of the guilty plea: the earlier the plea, the greater the discount. A key purpose of this bill is to encourage offenders to make an early guilty plea. It also encourages offenders to assist authorities in the administration of justice; for example, if they provide valuable assistance in the context of serious and organised crime.

I would like to focus my comments today on early guilty pleas, and particularly on the no-discount period, but I will now continue with the background. The bill draws on recommendations made by His Honour Judge Rice of the District Court some years ago, and developed further by the Criminal Justice Ministerial Taskforce. The theme was returned to in the Smart Justice report by Judge Peggy Hora. She made a list of recommendations to encourage early guilty pleas, and one of those recommendations was to formalise sentencing discounts for guilty pleas.

Other suggestions she made were that we consider legal aid funding of cases which rewards early disposition, rather than encouraging pleas on the first day of trial, and that we should consider a sentence indication scheme, where a judicial officer, having received a summary of the facts agreed to by the prosecution and defence, provides information on the sentence likely to be imposed if a defendant enters a guilty plea during the pre-trial process.

Judge Hora also suggested that we could look at adopting rules of reciprocal discovery and disclosure, and provide for a review of all cases by a senior prosecutor from the Director of Public Prosecutions at the Magistrates Court level. I think this suggestion highlights one of the concerns I have with this government and with the current Attorney-General. There seems to be too much of a focus on public sector-focused responses, and a bill that deals with early guilty pleas is, if you like, putting the spotlight on the behaviour of defence counsel and their relationship to the defendant, and how the pleas are managed.

As Judge Peggy Hora highlighted, there are a number of issues in how the public sector plays its part in the process. For example, one of the issues that has been raised with me is in relation to the late allocation of prosecutors. It is apparently not uncommon for the Office of the Director of Public Prosecutions to allocate a prosecutor a week or so before the trial is to commence and, in many cases, it is only at that time that there is a sufficiently senior prosecutor in place who can engage in meaningful discussions that can lead to discussions around a guilty plea.

Returning to the issues that the Hon. Kelly Vincent highlighted for us, I think it is important that we do pause and consider this bill in the context of the sensitivities of the wider community. This concern is highlighted by recent events in the United Kingdom.

This bill was tabled in the House of Assembly in March 2011, and for some months the British government has been trying to promote similar reforms in the Westminster parliament. The Conservative-Liberal Democrat coalition government wanted to increase the discount available there from 33 per cent to 50 per cent. That is somewhat different from the South Australian situation because we are going from a common law unspecified discount to a statutory discount of up to 40 per cent in most cases, whereas the coalition government was going from a Labour government introduced discount of 33 per cent, increasing it to 50 per cent.

The proposal was mauled by the popular press. Under a heading 'Ken Clarke, the paedophiles pal', The Sun newspaper of 17 June 2011 railed:

Ken Clarke was blasted last night over the latest scandal in his crusade for soft justice—halving sentences for thousands of paedophiles.

The Labour shadow, presumably the Labour shadow secretary for justice (whose name is Sadiq Khan), raged:

It is unacceptable that people who have committed such heinous crimes could have half knocked off their sentence just for pleading guilty.

He begged the government to scrap the disastrous move. Four days later Prime Minister Cameron did indeed scrap the proposal because, in his words, sentences would have become too lenient and criminals would have been sent the wrong message.

The Labour leader, Ed Miliband, described the proposal as 'yet another example of this government not being in touch with people and making proposals which they then have to abandon'. The UK government had admitted that the proposal was driven by resources and management and not justice—another similarity with our situation. It saw the proposal as a way of easing pressure on an overcrowded prison system. I note that, after years of racking, packing and stacking, our prison system is also chronically overcrowded. Perhaps our government has a similar objective in mind as well.

Let us remember that early guilty pleas are a form of plea bargaining. Plea negotiations have become an entrenched part of the justice system and, within bounds, they may well promote justice. But, as the British experience highlights, we need to be acutely aware that our public is likely to be deeply suspicious.

In an article in 1997 Mack and Anleu—I think it was in the Flinders Law Reform Journals—reflect on plea bargaining in the following terms:

It puts an inappropriate burden on the accused's choice to plead guilty, undermines proper sentencing principles, risks inducing a guilty plea from the innocent, undermines judicial neutrality and independence, and does not directly address the problems of time and delay which motivated its introduction by the courts.

The withdrawal of the British proposal I suspect does not reflect the fact that the public was happy with the 33 per cent discount. I suspect the British public and the Australian public would see a zero per cent discount as a good starting point.

We need to acknowledge that our public is very suspicious of measures such as these. So, while the opposition appreciates the appropriateness of discounts and will not be seeking to eliminate them in this bill, we do believe that we need to be careful that we do not undermine public confidence in the sentencing process by changes that we make. The particular level of any discounts, and the circumstances in which they are given, is a matter for judgment and it is important that, whilst it is legitimate for the state to understand the operational impacts of its changes, it is also extremely important that we keep in mind the public's view on these matters and that we do not serve to undermine public confidence in the sentencing process.

There is one difference between the British proposal and this bill, and that is that this bill denies any discount if the guilty plea is made just before trial. That element the opposition strongly opposes, and it will be the focus of my remarks today. The Attorney-General in the other place rightly concluded that this is a key 'point of difference between the government and the opposition—and the Law Society—a fundamental point of difference which is a matter of principle'.

In his second reading summing up the Attorney-General put the government's position in the following terms:

The principle is: if you are really late with your guilty plea, like on the day of trial, or, to put it another way, so late that the courts cannot backfill your spot in the court and therefore you might as well have left it to the last day—if you do that you do not get any discount on account of the plea only. You may get a discount for your personal circumstances, you may get a discount because of cooperation with the prosecuting authorities or any number of other things, but the element of your discount that might be attributable to a plea is zero.

The Attorney-General argues that if you are actually going to put a disincentive in the system it needs to be genuine and effective. The opposition does not object to codification per se if it were genuinely a codification of the current position, but we do not support removing from the courts the discretion to use discounting after a certain date. We strongly oppose the change.

Of course, plea bargaining already has implications for victims. I have already talked about the Westminster parliament considering this matter in recent weeks; it is also currently being considered by the Northern Ireland parliament. On 15 September, two weeks ago today, the Belfast Telegraph reported on concerns in the Northern Ireland Assembly on implementing discounts for early guilty pleas. The report states that several parliamentarians in the Assembly's justice committee claimed that early guilty pleas risk overlooking victims' concerns. The Ulster Unionist member of the Assembly, Basil McCrea, said:

There is a move afoot that the impact on victims should be considered more fully. There is a feeling I think that this is a discussion between defendants and legal process. I have a sense that if you were to ask the population in general would they prefer a quick decision or a decision where the appropriate sentence was passed, they would not be minded to say 'let's get it done quickly'.

My understanding is that victims' advisory bodies in South Australia have, in the past, objected to early guilty pleas on the grounds of this general concern about lessening appropriate sentences, but with this bill the Rann Labor government goes beyond that general risk and, by introducing the no-discount period, I believe it has doubly harmed the interests of victims and witnesses.

The Law Society highlighted that their principal concern with the bill is this no-discount period. A discount is not permitted for guilty pleas potentially well before a trial commences in the superior courts, and with four weeks of trial commencing in the Magistrates Court. In superior courts, the no-discount period might be many months before trial. Having no discount up to and possibly including the trial period fails to recognise the interests of victims and witnesses. A guilty plea during this period (depending on its timing) currently saves the state the cost of preparing and running a trial, and also benefits victims and witnesses by:

saving victims and witnesses the time and often the anguish of being involved in the trial preparation process;

saving victims and witnesses the inconvenience of travelling, particularly in relation to proofing and the trial, and the associated costs to the state in witness expenses; and

saving victims and witnesses the stress, even the trauma, of going through the trial.

The Rann Labor government is showing, in this bill, very low regard for victims' rights. The Attorney-General's asserts in his second reading speech that 'the retention of even a minimal discretion for a late guilty plea up to the trial date would undermine the policy behind the bill'. To rephrase that, benefits to victims and witnesses are of no concern to this government.

The member for Bragg and the Attorney-General thoroughly surveyed a range of current and potential initiatives which could be used to reduce the courts' backlog in this state. Rather than summarise their rich set of observations, I refer members to the Hansard of the other place, but I would like to take the opportunity to highlight one pilot mentioned by the Attorney-General on which I have been fortunate enough to be briefed by the Chief Magistrate, Chief Magistrate Bolton, which relates to case conferencing in the Magistrates Court.

Case conferencing provides a forum for constructive early negotiations to facilitate the speedy and appropriate resolution of matters, and Chief Magistrate Bolton assured me that it is showing very good prospects. It provides an opportunity for the magistrate and the parties to identify issues and to exchange information, and that often leads to matters being resolved at a much earlier stage.

The trial highlights that it is not just a matter of getting the plea in early. A number of elements need to come together for a trial to be as efficient as it can be. I think case flow management initiatives such as that—and I understand a similar program is operating in the District Court—should be given both consideration and also the resources.

There is a range of other matters dealt with by the bill, including discounts for assisting the state. The opposition is in the process of developing amendments. I consider that these issues would best be addressed by me in the context of the amendments in the committee stage, so I shall not take the time of the council this afternoon to go through them.

I do not consider that the bill will significantly reduce court delays. The bill will only be effective if the police, the DPP—in fact all elements of the justice system—ensure that they do all they can to facilitate matters and, particularly for the police and the DPP, that all information is brought together at an early stage, otherwise the disincentive to plead late will counterbalance the early incentive. I look forward to further consideration of this bill in committee.

The Hon. M. PARNELL (16:40): This bill seeks to regulate sentencing discounts given to offenders who plead guilty or offer assistance to the authorities. The driving force behind this bill is a desire to improve the operation and effectiveness of the criminal justice system by reducing current delays and backlogs in cases coming to trial. It does this by encouraging offenders who are minded to plead guilty to do so at an early stage.

I note the comments of the Hon. Stephen Wade who said that the justice outcomes were not a consideration in this bill and that, in fact, it had everything to do with the management of cases. I will come to that shortly, but I think he is right.

A second objective of this bill is to encourage offenders to assist the authorities in the administration of justice by offering sentencing discounts, particularly in the context of serious and organised crime. The bill provides for a graduated series of discounts for pleas of guilty and/or for cooperation with the authorities. The quantum of the discounts are dependent on the timing of the guilty plea and the nature of the cooperation with the authorities. The earlier the plea, the more significant the discount. Most importantly, the bill restricts the conferral of discounts for late guilty pleas.

I support the concept of sentencing discounts to be applied by judges and magistrates in certain circumstances, such as for early pleas and for cooperation with police, but the question before us in this bill is whether or not the regime that is currently contained primarily within the common law should be codified and, if so, whether the range of sentencing considerations and discount figures in this bill is an improvement on the current arrangement. In relation to the first point—Is it appropriate to codify?—my answer is: it may be. In relation to the second—Have they got it right in this bill?—the answer is: I do not think so yet.

The next thing I want to say is that the Greens believe that there is a range of principles that need to be taken into consideration. The first of these is the presumption of innocence. Everyone is presumed to be innocent until they are proven beyond a reasonable doubt to be guilty. The second principle is that the accused person has the right to put the prosecution to its proof and to challenge that evidence in court.

The third principle is that an accused person should not be unreasonably pressured into pleading guilty within an arbitrary time frame in order to potentially qualify for a sentencing discount, especially when the evidence is unknown or unclear or, in the worst-case situation, they are, in fact, innocent. Fourthly—and it is a flip side of the previous principle—a person should not be encouraged to go to trial, rather than plead guilty, simply because they have nothing to lose because there is no potential sentencing discount available to them. It is this fourth point that is particularly worrying in relation to this bill.

I attended the briefing this week by the Law Society which was arranged by the Hon. Stephen Wade, and I thank him for the opportunity to attend that briefing. Along with Law Society President Ralph Bonig, we also heard from barrister David Stokes. He presented a very convincing case, including a number of real-life case studies, that, he said, would be impacted by changes to the law such as are contained in this bill.

One example that he used—and he cut straight to the chase—was in relation to a potential rape trial. What he invited us to do was to imagine having to look the victim in the eye and explain that the only reason that she had to undergo the trauma of a trial was because the accused no longer had anything to lose or anything to gain by pleading guilty because it was too late to be eligible for any sentencing discount, therefore he may as well go ahead with the trial. That would be an injustice. It wouldn't just be an injustice to the victim; it would be an injustice to the witnesses and to the many other people who are involved in the criminal justice system. But that is not to say that we should encourage defendants to hold out for as long as possible unnecessarily or that we should not still reward early pleas.

The point to note is that the existing system already takes this into account. Like the Hon. Stephen Wade, my main concerns with this aspect of the bill are in relation to the mandatory no discount period. I believe that the potential impact of that provision could lead to adverse and perverse outcomes for justice in the pursuit of trying to fix what is essentially an administrative listing problem for the courts.

We want our courts to be as efficient as possible. We do not want to see long delays and we do not want to see the court sitting idle because there are no cases ready to proceed. I have no doubt that the job of listing cases for trial is an absolute nightmare. My court experience, as limited as it is, focused primarily on the Environment, Resources and Development Court. Their listing processes were fairly efficient, and part of the reason for that is that no-one went to trial without going to a compulsory roundtable conference first.

We have heard already today that there is a case conference trial under way in the Magistrates Court—effectively, a roundtable conference—and that similar provisions are applying in the District Court, and I think they are valuable tools for fixing the nightmare that can be the listing of criminal trials. But we do need to ask ourselves whether using sentencing discounts is the right tool for what is essentially a case management problem.

So, I am not convinced that this approach is appropriate. I am not convinced that this is the right tool for the job but, having heard from the opposition that they have some amendments in mind and, no doubt, the government will take stock of the lay of the land as they see it in the Legislative Council, I will not be opposing the bill at the second reading but I put the government on notice that it will require substantial amendment before I could support it at the third reading.

The Hon. A. BRESSINGTON (16:48): I also rise to speak to the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill. I, like the Hons Kelly Vincent, Stephen Wade and Mark Parnell, have serious concerns about this piece of legislation. I concur with all of the examples that they have used and also thank again the Hon. Stephen Wade for organising the briefing with the Law Society and barrister David Stokes.

One thing about having a briefing with a practitioner on the ground, who would have to manage these changes and incorporate these changes into practising law effectively for people who have been accused, is an eye-opening experience. We can sit in here, especially those of us without legal background or legal experience, and sometimes come to the conclusion that it is pretty much cut and dried when, in actual fact, the examples that Mr Stokes gave the other day show that there are many variants to be taken into consideration during that pre-trial period.

I believe from his comments, and also those of Ralph Bonig, that we are not improving the law here. As they said, the law works in this area perfectly well as it stands. We have a backlog in our justice system, but that is more about a resourcing issue than it is about whether or not people get discounts on their sentences for an early guilty plea.

I understand from that briefing that the court system has put in two pilots, if you like—although they do not like it to be referred to as a pilot, but I cannot think of another word for it—that are trying to work out within the court system itself better ways to deal with the backlog.

Apparently, in those two instances, they are getting results in being able to move through their case load a lot more efficiently. I think it would probably do this place and the Attorney-General well to speak to the magistrates and judges who are involved in that and see what it is that they are trying to do to deal with the issue that this bill seeks to address.

Again, I state in this place, as I have many times, that simply changing laws, especially in our justice system, to meet financial bottom lines, if you like, is hardly a good reason to fix something that ain't broken. I am inclined to not support this bill at all but I will wait and see what amendments the Hon. Stephen Wade comes up with. I do know that Mr Strokes said, 'Don't do it. Just leave it alone. Leave it be.'

I will seek other legal advice because I know there are always two sides to the legal story as well, but I am not of the belief that if there is a piece of bad legislation in front of us that we can amend it to make it good legislation. We can amend reasonable legislation and make it better, but if it is bad legislation then it is bad legislation.

So, I will wait and see with interest the amendments that the Hon. Stephen Wade puts forward and make my decision then. I, like the Hon. Mark Parnell, will not be opposing the second reading of this bill but I will be watching the debate very carefully before I make any decisions on those amendments.

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (16:52): I understand that there are no further second reading contributions to this bill, so I would like to make a couple of concluding remarks. I want to thank those honourable members who have made second reading contributions. They have been valuable contributions and have offered a range of different levels of support.

There are a number of important issues that have been raised in the second reading debate that I think will be best dealt with in the committee stage. So, I look forward to that. I understand that there are likely to be amendments, so I look forward to those and I will respond to them at the appropriate time. I commend the bill to the council and look forward to dealing expeditiously with the committee stage.

Bill read a second time.