CRIMINAL LAW (SENTENCING) (SUSPENDED SENTENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2013.)

The Hon. S.G. WADE (12:55): I rise on behalf of the Liberal opposition to indicate our support for the passage of the Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill. On 5 June the Attorney-General introduced the bill in the House of Assembly. It proposes to amend the Criminal Law (Sentencing) Act 1988 to limit the power of the court to suspend a term of imprisonment to when there are exceptional circumstances for two targeted groups of offenders.

Currently, a sentencing court must determine whether good reasons exist in order to suspend an offender's sentence. This is uniform for all cases, other than sentences for serious firearm offences, which require a higher threshold test to be applied, in that sentences can only be suspended when there are exceptional circumstances. This bill proposes to expand the cases in which judges must apply this higher exceptional circumstances threshold test to include people who are repeat violent offenders or are convicted of a serious and organised crime offence.

The good reasons test for the purposes of deciding whether to suspend a sentence requires the judge to consider the individual circumstances of the case at hand and assess whether these circumstances provide good reason to suspend a sentence. On the other hand, the exceptional circumstances test requires the sentencing court to be satisfied that there are exceptional circumstances in the instant case that set it apart from other cases and thereby justify an exercise of the judicial discretion to suspend a sentence.

The opposition has been advised that in the early 2000s there had been a trend for courts to interpret 'good reasons' as 'exceptional circumstances'. In the case of R v Fowler, the Supreme Court explained the differences between 'good reason' and 'exceptional circumstances' and concluded that the good reason test was the relevant test for suspended sentences. By requiring courts to apply the higher threshold test of exceptional circumstances, the bill will in effect enact the earlier trend for courts to interpret good reasons as exceptional circumstances. It is important to note that the definitions of serious and organised crime offences prescribed by this bill go beyond the definition prescribed in serious and organised crime legislation.

The Attorney-General posited in his second reading speech that this bill does not remove judicial discretion. That is true, but it does reduce it. In fact, reducing the judicial discretion is the whole point of the bill. The opposition appreciates that this will increase the number of offenders who are imprisoned. We are concerned to ensure that the government backs up the legislation with appropriate resourcing. We already have overcrowded prisons. We do not need to have it exacerbated by the government continuing to legislate without resourcing to back the legislative changes. A leaked November 2012 budget bid outlined the expected costs of the scheme in this bill:

This reform will result in an estimated maximum of 34 prisoners per day in the prison system immediately following the introduction of the new law, evening out to 18-27 extra prisoners per day over time. Extra capacity within the prison system will be required to allow for the expected increase in prisoners.

The budget bid estimated that $9.8 million would be invested for 30 additional prison beds at the Port Augusta prison, operating at a cost of $2.7 million by 2016-17.

At a briefing, the government claimed that there would be sufficient provision in the budget to cover the flow-on effects of this bill. The opposition will continue to monitor that situation. Having said that, the opposition supports the legislation. We do think it is appropriate that in relation to this targeted set of offenders they need to justify exceptional circumstances before they should be able to access suspended sentences.

Debate adjourned on motion of Hon. Carmel Zollo.

[Sitting suspended from 13:00 to 14:16]