CRIMINAL LAW (SENTENCING) (SUPERGRASS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 15 November 2012.)

The Hon. S.G. WADE (20:47): I rise on behalf of the Liberal opposition to speak on the Criminal Law (Sentencing) (Supergrass) Amendment Bill 2012 which was tabled in the House of Assembly on 11 July 2012. Similar provisions were first introduced into parliament on 24 March 2011 as part of the Criminal Law (Sentencing) (Sentencing Considerations) Bill 2011. That bill was defeated in the Legislative Council on 29 March 2012 primarily because of concerns with the guilty pleas component.

At that time the opposition indicated its openness to the elements of the legislation in relation to discounts for cooperation with authorities and invited the government to take up those elements by way of amendment to the serious and organised crime legislation where they more appropriately belonged and where they could be dealt with. The serious and organised crime legislation already provided for supergrass and its remissions for prisoners already serving their sentence. That bill was considered by the Legislative Council a week later but the government failed to take up the suggestion to amend the bill.

The opposition passed the SOCA legislation without amendment other than to require parliamentary committee oversight, and it perhaps is salutary to pause and reflect that, by the government indicating that it has accepted amendments 39 to 43 in relation to the Independent Commissioner Against Corruption Bill, that not only finalises that aspect in relation to the ICAC Bill but that committee will also provide oversight of the organised crime legislation pursuant to decisions made by this house earlier this year.

Informants are a well-established part of criminal investigations. It has been said that law enforcement cannot operate effectively without informants and that information from informants is responsible for the detection of the greater part of crime. One article in The New Yorker suggested that informants are the foot soldiers in the government's war on drugs. Obviously that is referring to the American context. By some estimates, in that jurisdiction up to 80 per cent of all drug cases involve informants.

This bill is not about everyday people who provide information to law enforcement agencies. By its own title, it purports to deal with supergrass informants. The term 'supergrass' does not carry the weight in this country that it does in the United Kingdom. It is a term which originates from the 1980s. In particular, it is seen to relate to the 1981 arrest of an Irish Republican Army terrorist, Christopher Black.

Black provided information that led to the arrest of 38 provisional IRA members, 22 of whom were subsequently convicted in 1983. On 17 July 1986, 18 of those convictions were overturned on appeal. It was claimed at the time that informers were being offered cash inducements, with politicians, including the secretary of state for Northern Ireland, being involved in arranging the deals. By the mid-1980s, I understand, concerns arose, particularly in the judiciary, in relation to credibility of evidence.

The United Kingdom Serious Organised Crime and Police Act 2005 is similar to this bill in that it provides a range of options for people who cooperate with authorities. Since the act came into force, I understand that more than 158 criminals have had arrangements under the legislation. Seven received full immunity, 11 partial immunity and 140 had their sentences reduced.

Following controversy in April 2012 about a two-year discount to a terrorist, the United Kingdom Crown Prosecution Service has committed to provide updated figures each year on the agreements in a way that the service considers does not put any individual at risk of harm. Another jurisdiction which has aggressively used a supergrass approach is Canada.

A Canadian academic whom I have consulted has advised me that, while there are no laws governing these types of activity, a number of government regulations define under what conditions a supergrass can be awarded a contract, what the contract could include and how the contract is to be managed, the point being that in Canada they quite aggressively use non-sentence incentives.

The management of the contracts is supervised by a control committee with four members, one from the ministry of public safety, one from correctional services, one from the prosecutor's office and one from the police organisation that recruited the informant. An informant may receive a range of benefits, such as sentence mitigation, canteen money, family payments, witness protection or prisoner transfer. The contracts are very flexible and accommodating.

I understand that the highest publicly known contract for an informant was $2.9 million. I understand that these contracts have been seen to be useful tools to bring outlaw motorcycle gangs to justice, however they have not been without controversy. International experience of supergrass deals, including sentence discounts, highlights the risk of bringing forth false and unreliable information and the contribution that might make to wrongful convictions.

In this context the government's use of the term supergrass in the name of this bill raises the question whether the government is proposing a significant shift in South Australian practice. If that was to be the case we would need to consider what measures we need to protect justice. Briefings with a range of government officers suggest to me that that is not the intention. In particular, I understand that a single Canadian supergrass monetary incentive could fund SA Police's inducements to human sources for some years.

The supergrass bill would provide courts with the power to reduce sentences for offenders involved in organised crime by up to 100 per cent if they cooperate with authorities in exceptional circumstances and that cooperation significantly contributes to the public interest. In his second reading speech and in moving this bill, the Attorney-General overstates the situation in my view:

The common law provides an existing range of about 20-40, or 50% for cooperation with the authorities. The Bill will allow a court to go beyond this to those offenders who will fall within the category of a true supergrass.

Later in the speech, he says:

The bill confers the power in a court to grant an 'at large' discount in sentence to an offender in return for the offender's valuable co-operation with authorities.

I stress the words 'allow' and 'confers'. The bill is another example of Labor's hollow laws. Judges already have the power to give 100 per cent discount. This bill basically codifies the common law power. Briefings with the Office of the Director of Public Prosecutions and the police confirmed my view that the bill does not significantly change the common law position.

The bill, though, noteworthily, has no cap. I note that the whole rationale for the government's Criminal Law (Sentencing) (Guilty Pleas) Amendment Bill is that for prospective sentence discounts to have an impact on criminal behaviour, they need to be quantified and reliable. However, the supergrass bill provides an open-ended discount. On FIVEaa radio, on 30 March 2012, DPP Pallaras said:

It is unlikely under the current system that people will get discounts of beyond 40%, but there's nothing to prevent a judge from doing that now before this law goes through so what this does is quantifies...an amount so that those who are contemplating cooperating with the police have something...to hang their hats on.

In fact, there was not quantification in the original bill, and there is not quantification in this bill either. I am advised that the Office of the Director of Public Prosecutions would be inclined to appeal a sentence discount over 60 per cent on the ground of being manifestly inadequate. Such discounts are available at common law but would be considered to be extremely rare and may well stimulate a challenge. I understand that discounts of one-third are likely to continue to be the norm and that discounts are typically likely to peak at 50 per cent. I also understand that the police are not planning any increase in non-sentence inducements.

The New South Wales Judicial Commission has suggested sentencing guidelines for cooperation with authorities. It suggests that a combined discount, all things considered, should not exceed 50 per cent, except in exceptional circumstances. The commission said that it would be rare for a sentence of more than 60 per cent to not be considered to be manifestly inadequate.

The opposition is concerned to ensure that prosecutors have the information they need to make decisions in relation to the appropriateness of sentence. If a prosecutor knows only that a letter of comfort has been given, they may not have the information they require to assess the adequacy of the sentence. The interests of justice would be best served by ensuring that both the defendant and the prosecutor in a case are aware of the total quantum of the discounts, including for cooperation with authorities. This advice could inform consideration of an appeal on the grounds of a sentence and its adequacy.

I indicate that the opposition is considering amendments to require advice to the defendant and the prosecutor in the case to enhance prosecutorial oversight of such discounts. I would welcome discussing possible amendments with the government and relevant officers before they are filed to increase the prospect of consideration of the bill being finalised before the end of this week. I have a few questions which I hope might assist that process and which I hope the minister might be able to address at the conclusion of the second reading stage. If the minister does want to sum up tonight, I would appreciate the answers to my questions before the bill is next brought on for consideration.

In discussions with the Attorney-General, I understand that he is of the view that one of the reasons this bill is needed is to ensure that the codification of guilty plea sentence discounts does not impugn sentence discounts for cooperation with authorities. Given that the bill before us deals only with cooperation in exceptional circumstances, I seek clarification about what kind of discounts will now be available for normal cooperation with authorities under the common law and whether the discount is likely to be affected by the codification of other discounts.

I ask: is it anticipated that the changes in the bill will allow greater discounts than currently provided for under the existing sentencing regime, and what is the maximum discount the government anticipates will be awarded under the scheme proposed in the bill?

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (20:59): I understand that there are no further second reading contributions, so what I intend to do is to sum up and put this into committee and then deal with the committee stage on the next day of sitting. I will be happy to provide answers to questions at clause 1 or at the appropriate clause number as we proceed through committee. I would like to thank the opposition for their support for this important piece of legislation and look forward to it being dealt with expeditiously through the committee stage.

Bill read a second time.