Criminal Law (Sentencing) (Suspended Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 September 2014)

The Hon. D.G.E. HOOD (16:24): This reform requires persons convicted of causing serious harm or manslaughter to spend some time in prison by ensuring the court cannot fully suspend a sentence of two years or more which has been handed down by the courts. Family First supports this reform. It is widely accepted that there is community concern about serious violent offending. Some commentary would suggest that when the reasons for sentences are explained to the community—

Members interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! There are two conversations going on in proximity to the honourable member. I give the call to the Hon. Mr Hood.

The Hon. D.G.E. HOOD: I appreciate your protection, Mr Acting President. It is widely accepted that there is community concern about serious violent offending. Some commentary would suggest that when the reasons for sentences are explained to the community, there is greater support for the court decisions. This may be true in some cases. There are, however, in my opinion and that of our party, significant times when this does not occur.

I have mentioned on numerous occasions in this place the case where a man held up a local country club, and one of the reasons for being given a suspended sentence was that he had a fight with his girlfriend prior to the offending. I am not making that up. This is a true case from a South Australian court in the very recent past. This simply is not a sufficient reason to suspend a sentence, and I do not believe that it would garner community support at any level if it were subject to scrutiny.

Last year we passed changes in this place to how suspended sentences operate in South Australia. Prior to that change, the law stated that a judge should suspend a sentence unless there was a good reason not to do so. Of course, the test of good reason was a subjective test in relation to the circumstances of the offender.

This parliament, in its good judgement I believe, changed the test required to suspend a sentence to an 'exceptional circumstances' test. It did not remove judicial discretion to suspend a sentence but rather raised the bar for which a suspended sentence could be granted. This was a more suitable approach in the opinion of our party.

There certainly are arguments for suspended sentences, and at times those arguments can be compelling. There is no doubt that offenders are warned by magistrates that they are receiving a suspended sentence, that this is their only chance to avoid gaol and that any further offending or infringement will result in a term of imprisonment. However, repeat offending infrequently results in imprisonment in many cases. No doubt this is a significant contributing factor to the vast community unrest we now see in relation to sentencing.

The community's concern about serious violent offending is understandable. Members of the community have a right to be safe in all environments as well as to feel safe in their homes, in their cars, wherever they may be. Community concern must be taken very seriously in this place. The impacts of serious crime on victims and their families can be devastating, and continue long after an offender has served their sentence. Family First believes that this measure will go some way to settling the unrest; however, it is clear that urgent reform is required.

At this time there is broad agreement that consistency and transparency are legitimate and important objectives of any modern sentencing system. I do not believe that this reform will reduce either consistency in sentencing or transparency and for those reasons again we support the measure. It is incredible to think that offenders convicted of manslaughter or causing serious harm may not serve a term of imprisonment at all. One must question the validity of the deterrence principle in sentencing in instances where somebody is found guilty of a serious and violent offence and does not serve any time in prison at all.

How does a sentence for a serious offence which does not impose a prison sentence ever send a message that serious and violent offending is not acceptable in our community? What is needed is a coherent and transparent sentencing framework that promotes public confidence, is judicially easy to apply, and actually sees offenders serve gaol time. We believe that this reform will do that. It will certainly go some way to supporting the sentencing principle of deterrence and bolstering public confidence in our sentencing process.

Under this bill there is of course judicial discretion to determine an appropriate sentence term and to determine the portion of the sentence to be served. Accordingly, the court would only be able to partially suspend a sentence within the framework of this reform. It would appear that this particular reform will capture only a small number of offenders, as the majority of convictions for these offences would result in significant terms of imprisonment, as one would rightly expect.

In regard to the potential increase of prison numbers as a result of this reform, I would like to ask the government on notice how many offenders they expect will fit within the framework of this reform and if any modelling or budgetary considerations have been given to the potential increase in imprisonment rates. However, as I say, I expect they will be small in number.

In looking at sentencing in general, there is certainly the argument—and a good argument at that, we believe—that we must not simply concern ourselves with punishment: we need to ensure that we are making the community safer and also that we are providing appropriate rehabilitation and other supports to the offender and their family to ensure where possible that recidivism rates are actually lowered.

His Honour Paul Muscat of the District Court in August noted that imprisonment is aimed at punishing behaviour rather than rehabilitation. Family First certainly supports appropriate sentencing, and we have strongly supported longer imprisonment for certain offences in the past. We are on the public record for having done so.

Our system in most instances is retributive. However, research has shown that restorative justice methods frequently decrease recidivism and aid in the rehabilitation of offenders at higher instances than the alternative. Notwithstanding our strong stance on appropriate imprisonment terms, I would encourage the government to look further into restorative justice methods either in the lead-up to court matters, for programs offered whilst offenders are actually in custody or indeed even for post-release programs.

Turning our attention to other states, it is worth noting that Victoria has recently removed all suspended sentences from its court system—all of them. Victoria began the system overhaul in 2011 by removing suspended sentences from its state Supreme Court and County Court systems. As of 1 September 2014 (just a few weeks ago), all suspended sentences have been removed from the Magistrates Court also. Victorian Attorney-General, Hon. Robert Clark, on the removal of the suspended sentences, said that this move restored truth to sentencing. He further stated:

If a magistrate does not believe an offender should go to prison, the law will in future require that to be done openly instead of the law pretending an offender is going to prison.

Victoria is the first state to completely remove suspended sentences and Tasmania is currently phasing out suspended sentences, so clearly there is widespread acknowledgement that suspended sentences no longer have community or parliamentary confidence, at least in those states, and I suspect it is true in this state as well.

Indeed, members may remember that I have made a number of moves to reduce and in some cases abolish suspended sentences over the years. I must say, when I first made those moves nearly nine years ago now, they were met with less than resounding applause by some, but that is the direction that other parliaments in Australia are heading, and I am pleased to see that that is the direction this parliament is heading as well. It is pleasing to see the changes that the government has brought forward in this bill in order to change the suspended sentencing regime in South Australia, and we certainly look forward to further reform in this area. I see this as a step in the right direction, but by no means the end of things. I indicate that Family First supports this bill and we look forward to the debate.

Debate adjourned on motion of Hon. A.L. McLachlan.

At 16:33 the council adjourned until Tuesday 23 September at 14:15.