CRIMINAL LAW (SENTENCING) (SENTENCES OF INDETERMINATE DURATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 12 November 2013.)

The Hon. S.G. WADE (17:07): I rise to indicate that the opposition will be supporting the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013. When a person commits an offence in South Australia our courts weigh up the circumstances in which the offence took place, the gravity of the offence and the need for punishment. Of course, our courts do not send people to prison lightly; in fact, under statute, they are bound to use it as a last resort.

Custodial detention provides three things: first, it imposes punishment; secondly, it provides an opportunity for rehabilitation; and thirdly, it provides incapacitation. The government's focus on incapacitation over the last decade has meant that offenders are often released at the end of their sentence without receiving adequate rehabilitation. As a result, there are more victims in South Australia than there need to be.

There will always be some people who, despite having access to rehabilitation, remain disengaged and a risk to the community. There are a small number of people who are either unable or unwilling to control their urges, and society needs to be protected from them for the sake of the community.

A special regime in South Australia operates to manage these offenders. Under section 33 of the Criminal Law (Sentencing) Act 1988, an offender who has been assessed as being incapable of controlling, or unwilling to control, his or her sexual instinct may be detained in custody by order of the Supreme Court until further order. This kind of sentence is known as an indeterminate sentence.

The purpose of an order under section 23 is principally for the protection of the community and not for the punishment of the offender. Whilst there is a lack of explicit guidance, a release on licence under section 24 has been held by the court to involve the exercise of a discretion on similar criteria to those under section 23; that is, that having taken into account both the interests of the person and of the community the court is of the opinion that the order of detention should be discharged.

The bill is proposing to narrow that consideration to say that the paramount consideration should be the safety of the community. Currently, the court is only required to consider the report of at least two legally qualified medical practitioners when determining an application for a discharge of an indeterminate sentence under section 23. The bill imposes the same requirement in relation to an application for a release on licence under section 24. In addition, the bill inserts a requirement that the medical practitioners be nominated by a prescribed authority.

I am told that the government intends that the prescribed authority is likely to be the director of forensic mental health, currently the forensic psychiatrist Dr Ken O'Brien, based at James Nash House. The government advises that it hopes this provision will, if I can paraphrase, limit forum shopping for medical advice. In discussing it with practitioners in the field, it was also highlighted to me that in many respects the task that the act requires is not a medical task such that a person should have freedom of choice or practitioner, it is actually in the nature of a risk management task. It is appropriate that they be legally qualified medical practitioners, but it would not be adequate for the task for them merely to be skilled in those areas. The task is significantly one of risk management and the opposition therefore sees the wisdom of the government's proposal.

At the briefing provided by the government I was advised that there are 10 offenders subject to section 23 orders in James Nash House and other prisons: two are subject to section 24 licences and two of the 10 are awaiting placement on section 24 licences when accommodation is available. I acknowledge that the Hon. Carmel Zollo, being a former minister for correctional services, would be well aware of the challenges that our prison system, both forensic and general, has in managing people with mental health issues, let alone those people covered by this act, people who are not willing to control their urges.

The bill also proposes to reduce the frequency of the relevant board's reporting requirement under section 23(9) to annually rather than six-monthly. Following amendments moved by the government in the House of Assembly, that report now needs to include recommendations that are given to the person in detention. These recommendations can be considered by the court when the person is applying for their detention to be discharged. The government also moved an amendment that allows the Supreme Court to consider the monetary cost of releasing the person on licence when deciding whether to release them.

Finally, the bill amends the definition of 'relevant offence' in section 23(1) to include an offence of failing to comply with any reporting obligation relating to contact with a child without a reasonable excuse where the defendant is a registerable offender under the Child Sex Offenders Registration Act 2006. With those words of context, if you like, the opposition indicates that it supports the bill. We support the amendments made to the bill by the government as it has progressed through the parliament. We certainly believe that an appropriate focus on community safety, making community safety a paramount consideration, we hope, will serve to provide a lower level of future victims. I commend the bill to the council.

Debate adjourned on motion of Hon. Carmel Zollo.