CRIMINAL LAW (SENTENCING) (SUPERGRASS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 4 September 2012.)

The Hon. CARMEL ZOLLO (16:06): I urge honourable members to support this important bill on this occasion. As the Attorney-General made clear in his contribution to the debate in the other place, the problems posed to our community by organised criminal gangs are very real. These criminal gangs indulge in serious crimes such as manufacturing and trafficking illicit drugs and all too often, as we have seen over recent years, resort to thuggery and the indiscriminate use of firearms to resolve their internal disputes and to enforce their criminal will.

These gangs, especially their leaders, consider that they are above the reach of the law and can operate with impunity. Conventional law enforcement has often proved ineffectual to deal with such criminal gangs, as witnesses are all too often scared and are unwilling to testify or assist the authorities in the investigation and prosecution of such criminals.

This bill draws on established practice and sends a clear message and encouragement to offenders involved in serious and organised crime to provide full and frank assistance to the authorities and to turn on their criminal associates, especially the so-called Mr Bigs of these gangs. The bill does this by providing a court with a limited discretion in the context of serious and organised crime to grant an at large discount in sentence for truly exceptional cooperation to the authorities.

The accused does not walk away scot-free in such circumstances. Rather, the court in deciding the sentence to be imposed, weighs up the nature and gravity of the crime and the offender with the nature and importance of his or her exceptional contribution to the authorities in the context of serious and organised crime.

The bill deals with exceptional cooperation prior to sentence. The bill is in identical terms to the procedure already in the Statutes Amendment (Serious and Organised Crime) Act 2012 for exceptional cooperation for serious and organised crime after sentence. It may strike some as unpalatable to give criminals a substantial discount in their sentence for providing valuable assistance to the police, but it has long been recognised that this is something necessary to get at the Mr Bigs in serious and organised crime and to bring to justice criminals who very well otherwise may be beyond the reach of the law.

I highlight the very positive contribution to the House of Assembly debate in the other place by the member for Morphett, the shadow police minister. The member for Morphett said he wanted to make sure that the South Australia Police are given every opportunity to do their job, to obtain the evidence and solve the crimes, particularly when it involves serious and organised crime. He is right.

The member for Morphett highlighted the code of silence and the intimidation and threats which frustrate the police investigation into serious and organised crime. The member for Morphett rightly noted that, if we can get those involved at the coalface of serious and organised crime to spill the beans and to tell the truth, even at the cost of a very large discount in sentence in an appropriate case, that is something we should be doing. It is important, as the member for Morphett noted, to get those involved in serious and organised crime to help the police and to break the code of silence, or concrete barrier, as he described it. I wholly agree with the comments offered by the member for Morphett in the other place.

The bill will not be a complete solution in itself, but it tackles the code of silence that typically arises in cases involving serious and organised crime. I remind honourable members that the bill again supports the identical existing procedure in the Statutes Amendment (Serious and Organised Crime) Act 2012 for exceptional cooperation for serious and organised crime after sentence. I urge honourable members to give this bill their support on this occasion.

The Hon. A. BRESSINGTON (16:11): I rise to speak to the Criminal Law (Sentencing)(Supergrass) Amendment Bill 2012. The bill seeks to codify the existing common law regarding sentencing discounts for those who cooperate with the police, but only if the information they have relates to serious and organised crime, as defined in the Criminal Law Consolidation Act 1935. Discounts applying to cooperation relating to other offences will be left to the existing extensive common law that has developed.

For a defendant to be eligible for the sentence discount, the court will also need to be satisfied that the cooperation is provided in exceptional circumstances, which I shall refer to later, and contributes significantly to the public interest. Being so satisfied, the court is then directed to have regard to some 11 factors, such as the nature and extent of the defendant's cooperation or undertaking and the timeliness, significance and usefulness of the defendant's cooperation, in an attempt to balance the public interest of punishing the defendant with prosecuting another due to his or her cooperation.

While the bill theoretically enables the sentencing court to impose a discount of up to 100 per cent, I indicate that, having met with the Director of Public Prosecutions, I understand that currently discounts given to those who cooperate range up to 50 per cent and, in exceptional cases, as high as 60 per cent. The director indicated that, if a discount was to exceed this, he would strongly consider appealing such a sentence on the grounds that it is manifestly inadequate.

The bill before us is by far a significant improvement on the first attempt in the Criminal Law (Sentencing) (Sentencing Considerations) Amendment Bill, which sought to codify the discounts available to all who cooperate and to impose arbitrary discount limits available to them. That bill would also have permitted a discount only to those who plead guilty, which I believe would have significantly reduced the number of individuals willing to share what they know.

Common sense would suggest that a defendant who believes that they had even the slightest prospect of beating a charge is not going to plead guilty just so that they can risk life and limb to cooperate with the police. The supergrass bill, however, will at least allow such defendants to plead not guilty and, if following their trial, they are found guilty, to come forward in an attempt to reduce their gaol time.

Of course, the sentencing court must take this into consideration as one of the 11 factors to be considered when determining the discount. But the fact that a person was found guilty should not preclude them from a benefit for sharing what they know. This will also bring the bill in line with the relatively new section 29E of the Criminal Law (Sentencing) Act, which enables inmates serving a term of imprisonment to come forward with what they know and, if valuable, to apply to the courts to be resentenced.

Obviously, this is available to all inmates, regardless of whether they plead guilty or were found to be such after trial. That said, the supergrass bill does seek to narrow the availability of the discount it proposes to those whose cooperation is provided in exceptional circumstances.

Whilst the term 'exceptional circumstances' was repeated often by the Attorney-General when introducing the bill in another place, I struggle to ascertain the intended utility of this requirement, and how the circumstances of one guilty person's cooperation could be any more or less exceptional than another's, particularly given that the bill no longer insists on the defendant pleading guilty.

I ask the minister to clarify this, either when summing up or during the committee stage, and I look forward to further debate and listening to further views on this bill as the debate progresses. I do not believe that I am attempting to amend this bill, but I am considering some amendments by the Liberal Party, I do believe, so I will leave it at that.

Debate adjourned on motion of Hon. G.A. Kandelaars.