Statutes Amendment (Home Detention) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 December 2015.)

The Hon. A.L. McLACHLAN (15:51): I rise to speak to the Statutes Amendment (Home Detention) Bill 2015, and I speak on behalf of my fellow Liberal members. The bill provides for an alternative penalty to a sentence of imprisonment to enable a larger group of convicted offenders to be placed on home detention. The Liberal Party will be supporting the second reading of the bill, but has filed amendments.

To achieve this end, the bill amends both the Criminal Law (Sentencing) Act 1988 and the Correctional Services Act 1982. We have been informed by the government that the purpose of these amendments is to divert away from custody offenders who are assessed as at low risk of causing harm to the community, while providing a suitably intensive penalty that is serious enough to warrant restrictions on their freedom and liberty.

The Attorney submits that this bill will minimise the harm and economic loss associated with imprisonment by allowing offenders to retain community ties and benefit from greater rehabilitation opportunities. It is hoped that this will promote rehabilitation of offenders and thereby reduce recidivism by ensuring that those of low risk, or at the lower end of the scale, are not exposed to the environment of a correctional institution. The Liberal Party is supportive of this objective.

Currently, section 37A of the Correctional Services Act 1982 places limitations on when a prisoner is eligible to be released and provides a maximum period of 12 months that can be spent on home detention. The amendments contained in the bill expand the Correctional Services home detention program to allow suitable prisoners to be released on home detention earlier in their prison sentence and to spend longer amounts of time on home detention.

For example, it removes the requirement for prisoners to serve 50 per cent of a nonparole period, or a total sentence where no nonparole period is fixed, before being eligible for home detention. It also removes the limitation that prisoners can only spend a maximum period of 12 months on home detention. This will enable the Department for Correctional Services to identify a larger number of eligible prisoners who meet the suitability criteria for release on home detention under strict conditions and monitoring.

All the other eligibility criteria remain the same, which means that life sentence prisoners, sex offenders and terrorist offenders are not eligible for home detention under the Correctional Services program. The bill's amendments also bring changes to the Criminal Law (Sentencing) Act to establish home detention as a valid sentencing option for a court when imposing a period of imprisonment. Currently, if a period of imprisonment is to be imposed, a good reason does not exist to suspend that sentence pursuant to section 38 of the Criminal Law (Sentencing) Act; the only option open to a court is to impose a custodial sentence.

Therefore, these amendments will provide an added avenue for a court to impose a sentence of imprisonment to be served on home detention. The bill does not, however, exclude any particular classes of offences or terms of imprisonment for its application. The only prerequisite is that the sentencing court retains discretion to be exercised upon consideration of all the facts and circumstances of the individual case.

The bill lists matters that the court must take into consideration when making the determination of whether to order a period of home detention, with the paramount consideration being the safety of the community. Other factors include, for example, the impact the home detention order is likely to have on any victim, spouse or domestic partner of the defendant, or any report ordered by the court for the purpose of assisting the court in determining whether to make a home detention order.

We are informed by the government that the home detention option is only intended to be utilised for those offenders who are assessed as posing a low risk of causing harm to the community. The conditions of a home detention order under the bill are more intensive than a suspended sentence bond, while still allowing for an offender to retain ties within the community.

The offender will effectively be detained in the approved place of residence and can leave only for remunerated employment, necessary health-related treatment, or for education or training activities as required by the court. The Liberal Party is pleased that the bill creates an offence for contravention, or failure to comply with the conditions of a home detention order, which is punishable by a significant fine or further imprisonment.

I note that the Law Society wrote to the Attorney-General on 22 October 2015. The letter was written by the then president, Rocco Perrotta. I have asked the minister if, in summing up his second reading, he could address for the record the various issues raised by the Law Society—some of which are more administrative in nature—and give an indication in those circumstances the intention of the government upon enactment of the bill.

The Liberal Party has filed some amendments, and I will address those in greater detail at clause 1 in committee. The government at this point have made some submissions in relation to those amendments, and they are being considered by the opposition. We may have a more crystallised view when we reach the committee stage in the following sitting week.

The amendments of the opposition seek to restrict the discretion of the court to provide for home detention for murder, serious sex offenders and terrorist offenders. I flag that, in part of the government's submission, it is perceived by some that this might be an unnecessary restriction on the discretion of the court. We will have an opportunity to debate that in the committee stage. With that, I commend the bill. Again, we will support the second reading, and I look forward to the committee stage.

The Hon. T.A. FRANKS (15:58): I rise on behalf of the Greens to speak to the Statutes Amendment (Home Detention) Bill 2015. The Greens believe it is important that our sentencing laws provide for judicial discretion to ensure that the courts can address all the circumstances of the cases they hear, including the gravity of the offence, the circumstances of the offender and victim or victims, deterrence, and rehabilitation.

The Greens support the government's commitment to ensuring that our corrections system moves away from the legacy of former correctional services minister Kevin Foley, who once said the infamous phrase, 'Rack 'em, pack 'em, stack 'em, if that's what it takes to keep our streets safe.' He was of course referring to cramming two to three prisoners in one prison cell as a measure of addressing the increasing cost of running our prisons. We know that the state government spends approximately $77,000 per prisoner per annum, which is an enormous amount, and something we must address. We must ensure that we do this in a way that reduces the overcrowding issue in our prisons, and indeed is smart justice, not just tough justice.

The Greens welcome the consultation the government has undertaken when having this bill drafted. We know that the government engaged in a discussion paper called Transforming Criminal Justice—Better Sentencing Options. This paper was released in June last year, and through a community advisory panel was organised by democracyCo, which is an innovative South Australian company focused on providing assistance to improve citizen engagement on various issues.

That advisory panel saw 19 representatives, who were selected from the sector, organise several workshops with stakeholders, and I have been advised that the cost of engaging democracyCo was approximately $23,203.50 (to be approximate). The bill before us is a reflection of the feedback taken via this stakeholder engagement process. It amends the Criminal Law (Sentencing) Act 1988 to establish home detention as a sentencing option for a court imposing a period of imprisonment.

The bill also allows the Department for Correctional Services to identify a larger number of eligible prisoners to be released on home detention under strict conditions and monitoring. This home detention program will not be available for every prisoner, and we know that life sentence prisoners, sex offenders and terrorist offenders will remain ineligible for home detention. They are not explicitly excluded in the bill, but they would be considered by the courts to be high risk and therefore not eligible for home detention. The bill does require the court to make the judgement call on who the qualifying offenders will be to be captured by this bill.

I have been advised that, as of 7 February 2016, 169 people were on the back end of the home detention orders. We know that the Correctional Services home detention program has been successful for nearly 30 years and that this has been one of the prompts for the government to create a new power for our courts to make home detention orders as part of that sentencing order.

As part of my contribution to the bill, I would also like to reflect particularly about women who are in our prison system and perhaps, because of the circumstances they find themselves in, end up in our prisons for sometimes minor offences and the impact that this can have not only on themselves but of course on their families. I am certainly cognisant of the publication Captive Minds: Truth Behind Bars: Realities of Women's Imprisonment in South Australia. I thank members of Seeds of Affinity for providing me a copy of this publication, which has been most enlightening for a member of parliament to read, not only statistics.

Certainly, I was struck by the information inside the booklet of the high prevalence of women in prisons who suffer from borderline personality disorder, an issue members would be well aware that I have raised in this council before, along with the Hon. Kelly Vincent and the Hon. Stephen Wade, as a significant mental health concern in our community. When you note that it is the second most prevalent mental illness suffered by women prisoners, you would have to think that there is certainly an area there where the services we have been talking about and advocating for borderline personality disorder in this state may reduce the incarceration rate of some of those women. One of those stories in Captive Minds that really struck me is titled Another Women's Experience. It is a personal account, which reads:

When I first came to prison I had no idea what kind of woman dwelled within and I had a fear of the unknown. Nobody I know had ever been to prison or associated with people that had.

I am the only child of an upper middle class family and all my friends are of similar background. I attended a Catholic private school and grew up in an environment that was always aware of 'what the neighbours think' if we failed to keep a certain standard of living.

I am an intelligent full time single mum to 2 beautiful children who also attend private schools. My children were the product of an abusive relationship where I constantly sought the approval I never received from my mother. I was never quite 'up to standard' and I was more of the 'its not what's on the outside but what's on the inside that counts' type of person, much to my mother's horror.

After years of verbal and physical abuse, my children's father left me for another woman. That's when I fell into the trap of trying to please the unpleasable and lied to Centrelink about my earnings in order to have as much money as possible. I felt a big enough 'loser' as it was, let alone not having the money to maintain 'a certain standard'. It all caught up with me and I was sentenced to 14 months imprisonment for Centrelink fraud.

Being incarcerated was the most frightening and life changing experience for me. I lost everything from my home, to my children, to the cat, the furniture, even my underwear.

When I plan to make a fresh start I mean it in every sense of the word. Ironically, the things I found the most mundane on the outside are the things I miss the most on the inside. The relentless call from my children 'MUUUUM?' while I was on the phone or toilet, the cat getting under my feet while I was preparing a meal, the morning traffic of the school run, are all things I miss dearly.

I have learnt who my true friends are, and the list is short. My mother refuses to visit and my friends who promised to bring my kids to see me every weekend, haven't brought them once. I can ring my children whenever I want as long as I have enough money on my phone account after getting paid $27 a week and the one phone for 35 other women is free. Even if I do get to speak to them, it can be no longer than 15 minutes. As nice as it is to speak to them, a phone call is no substitute for a goodnight kiss and a bedtime story from Mum.

I can honestly say I have never experienced loneliness like I have in here. It is all part of the price I must pay for my mistakes, and I have seen enough in here to know that I am one of the lucky ones. Life on the outside for me is a much better option than life on the inside.

Since being incarcerated I have met many women from all different walks of life. While some do fit society's stigma of the stereotype associated with the system, I was surprised to learn how many don't. I too was blindsided by the media's betrayal as to what type of women are behind bars. I can assure you it is far from what we are led to believe. I guess that's what happens when you only hear one side of the story.

It is time for women prisoners to tell the full story and the how and why of what led them to prison.

You cannot but have compassion when you think of those children without their mother, and I certainly would imagine that in many cases, where children's needs are put first, there might be cases when home detention is considered the most appropriate thing for the court to recommend.

In conclusion, I know that this bill requires the court's interpretation on who it determines to be eligible for home detention. The paramount consideration of the court when determining whether to make a home detention order will be the safety of the community. This then means that women prisoners, like the woman whose story I just read out who had a 14-month sentence for Centrelink fraud, may meet the criteria.

We know that we are likely to see an increase in the number of prisoners who are eligible for home detention. However, I ask the minister to ensure that staffing levels are increased accordingly and that the $2.5 million in funding for the home detention program includes the cost of additional staff, GPS and electronic monitoring devices. It would be undesirable to see an expansion of prisoners in home detention coupled with insufficient administrative support, and so certainly I encourage the new minister to look into these matters in detail, and I wish him well with his portfolio. With those words, the Greens support the bill.

The Hon. J.A. DARLEY (16:07): This bill expands the parameters of when home detention can be used. It will allow the courts to impose a sentence of home detention rather than a custodial sentence. Currently, only offenders who have served 50 per cent of their nonparole period of a custodial sentence are eligible for home detention. This bill removes this restriction and will allow for a greater number of prisoners to apply for home detention.

I understand that punishment of a crime should have balanced elements of punishment of the offender whilst also giving them the opportunity to rehabilitate themselves before returning to society. The minister's second reading very strongly indicated that imposing a custodial sentence on some offenders may actually do more damage than good and that home detention in a supportive environment would provide for a much better outcome not only for the offender but for the community.

However, I wonder if this change is due to the fact that our prisons are full and the government is looking for alternatives to house offenders, especially as the plans to build a new prison at Mobilong were scrapped two years ago. I understand that the proposal will not allow home detention for all offenders but only for those who have been deemed to not be a risk to the community.

I am concerned that, whilst there are restrictions for those who are already serving custodial sentences to be eligible for home detention, there are no restrictions on the courts. Currently, those who are serving a life sentence or are convicted of certain sex offences or terrorist acts are ineligible for home detention. They will continue to be ineligible should this bill pass; however, there are no similar restrictions for home detention sentences imposed by the courts.

When my office raised this with the government, the response was that the court should have flexibility to determine if a sentence of home detention would be suitable on a case-by-case basis. Does this mean that the government does not trust the judgement of the chief executive of corrections to make the same assessment? I understand the opposition have moved an amendment which will address this and I look forward to hearing the government's response to this.

Debate adjourned on motion of Hon. T.J. Stephens.