Sentencing Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 March 2017.)

The Hon. A.L. McLACHLAN (16:32): I rise to speak to the Sentencing Bill. I speak on behalf of my Liberal colleagues. The Liberal opposition will support the second reading. I alert honourable members that the Liberal Party will seek to explore amendments to clauses of the bill regarding home detention, and the Liberal opposition will also consider the debate on the second reading when assessing any amendments that may be put forward by other honourable members in the chamber.

When contemplating crime and punishment I am always drawn to the line, 'Yet who would have thought the old man to have had so much blood in him,' one of the most powerful lines in the great plays, demonstrating the corrosiveness of guilt. In response to a criminal act the community has always grappled with an appropriate response. In sentencing, the state acts in its most coercive manner; therefore, the infliction of a punishment on an individual by the state presents a distinctive moral challenge to any community, especially when determining what the appropriate treatment is for those who have been convicted of a crime.

There are generally two main schools of thought. There are those who justify punishment as a means to deter and even prevent future criminal acts as well as seeking to reform offenders. The alternative view is that punishment is deserved and therefore an inherently appropriate response to criminal wrongdoing. Punishment by its very nature imposes a burden on the individual convicted. There is an element of retribution to ensure the maintenance of social order. It is in the form of restriction of liberty, financial penalties or community work.

There is also some component of suffering and public condemnation, and a desire for community wellbeing. This leads to an inevitable tension between many of these objectives and the importance of ultimately restoring the guilty to the community, if possible. We must be careful that the punishments that are inflicted in our name do not harden individuals into career criminals. Those who have committed crimes should receive a punishment, but it is an old wisdom that teaches us that we must always seek to be humane and show mercy, especially when the convicted has demonstrated contrition.

This bill repeals the Criminal Law (Sentencing) Act 1988 and rewrites the legislation for the sentencing of criminal offenders within South Australia. The bill seeks to address the inherent tensions in sentencing which I have raised. The primary purpose of sentencing a defendant will be to protect the safety of the community. There are also secondary sentencing purposes identified. The bill contains provisions that are dependent upon the passing of the government's indictable offences bill, which seeks to overhaul the way indictable offences are procedurally dealt with in the criminal justice system. Some of the provisions in this sentencing bill relate to sentencing discounts for guilty pleas made at various stages of their proposed pre-trial disclosure regime in the indictable offences bill.

I now turn to the practical changes proposed by this bill. The bill repeals the current sentencing act and replaces it with a new act. Firstly, it reforms the general sentencing principles that are contained in the current act. The extant act contains an extensive list of sentencing considerations in section 10. The bill repeals this and replaces it with a new model. As I have mentioned, the bill sets out that the primary purpose of sentencing a defendant is to protect the safety of the community. The bill then sets out a range of secondary sentencing purposes. These include considerations such as punishment, deterrence and rehabilitation. Every sentencing principle is subject to the overriding primary principle.

A third tier of technical, or what is called individual, sentencing factors is then set out. There is no particular order in which these factors are to be considered, and the significance of each will largely depend on the facts of a particular case. By way of example, these include a range of factors already considered in the sentencing process, such as the nature, circumstances and seriousness of the offence, the personal circumstances and vulnerability of the victim, the defendant's offending history, age, physical and mental condition, and the likelihood that they will reoffend.

The bill also proposes some reforms to the operation of sentencing reductions for guilty pleas. The Criminal Law (Sentencing) (Guilty Pleas) Amendment Act and the Criminal Law (Sentencing) (Supergrass) Amendment Act came into force as recently as March 2013. Those acts created a legislative scheme for the reduction of sentences following guilty pleas and a defendant's cooperation with law enforcement agencies. The scheme created a sliding scale of reductions depending on the timing of the guilty plea.

Of note, under the current act, if a guilty plea is entered not more than four weeks after the first court appearance, the sentencing court may reduce the sentence by up to 40 per cent. If a plea is entered more than four weeks after that, the maximum discount decreases in accordance with prescribed periods to the lowest maximum of 10 per cent. Those provisions are also aimed at encouraging offenders who are minded to plead guilty to do so in a timely way.

The acts were to be reviewed after two years and this was conducted by the Hon. Brian Martin AO QC. In his review, he addressed the legal interpretation of the maximum 40 per cent discount provision for those offenders who pleaded guilty within the first four weeks after their first court appearance. He drew attention to the Court of Criminal Appeal's decision that where negotiations have taken place after this four-week period as a result a different charge is laid in its place. The time period restarts upon the filing of this new offence. The Attorney stated in his second reading in the other place that it was never the intention to allow the defendant who declines to negotiate until the doorstep of trial to merit a 40 per cent reduction in sentence.

To address this issue, the bill before us includes amendments to ensure that the court has regard to the timing of the negotiation when they result in the laying of an alternative charge in respect of the same conduct. The bill also introduces a maximum 10 per cent reduction incentive for those defendants who do not plead guilty but comply with the proposed new pre-trial disclosure requirements.

The bill introduces some amendments to the government's newly implemented home detention regime. The proposed changes include a requirement that a home detention order may not be made if it would lead to a lack of public confidence in the administration of justice. The conditions of home detention will now specify that liberty to attend remunerated employment and attendance at a course of education, training or instruction must first be approved by a home detention officer. The bill also introduces mandatory electronic monitoring.

The Liberal opposition has filed amendments to the home detention provisions. These amendments were moved by the member for Bragg in the other place, but they did not, at that time, find favour with the government. In short, the amendments seek to restrict the amount of time a home detention detainee can be outside their home to 12 hours a day and restrict the type of remunerated employment that the home detention officer can allow the detainee to take part in to exclude sporting activities. It also defers any proposed change to the detainee's employment or time at home arrangement back to the court rather than to the home detention officer.

The Liberal opposition has been prompted to move these amendments as a result of the issues that have already arisen with the operation of the government's home detention scheme. We continue to consult on the potential impact of these provisions. As a result of the consultation, our amendments may be subject to some further refinement.

The bill also introduces two new sentencing options for courts to impose when sentencing, in addition to the measures that are currently available. The first is called an intensive correction order and the second is a community-based order. I asked the minister in the summing up of his second reading what the genesis for these two new options was, have they been used interstate and, if so, have they been proven to be effective?

I also asked the government to address, in the summing up of the second reading debate, the points and arguments raised by the South Australian Bar Association in their letter to the Attorney-General dated 15 March 2016. Sentencing is never an easy task and is often subject to much poorly informed debate. In the end, as legislators, we try to strike the right balance between entrenching in prescriptive legislation what we believe are community standards and allowing those we have appointed as judges to exercise discretion, having regard to the facts of each case. As Lord Kenyon said in the Trial of the Earl of Thanet and others in 1799:

In dispensing the criminal justice of the country, we have sometimes an arduous task to perform. It is not a pleasant thing, most certainly, to condemn any one of our fellow creatures to punishment; but those who are entrusted with the administration of the criminal justice of a country, must summon up their fortitude, and render justice to the public, as well as justice tempered with mercy to the individual.

The Hon. M.C. PARNELL (16:42): The Greens will also be supporting the second reading of this bill. It is always difficult to follow the Hon. Andrew McLachlan with his Shakespearean style, but I will inform the council that one of my very rare appearances on the stage was as a cast member in the jury in the Gilbert and Sullivan play Trial by Jury. I think Mr Acting President knows that piece quite well.

Members interjecting:

The Hon. M.C. PARNELL: I am not going to be baited by members of the government to sing it. In fact, it was my one and only singing performance on stage. I was never invited back for a return season. There are two lines from that play that stick in my mind. The first line is one that the chorus has to sing, 'From bias free of every kind, this trial must be tried,' and the other line is, 'Let the punishment fit the crime.' That is the segue into the Sentencing Bill.

This bill has had a long gestation. It came out at the start of 2016 as a fairly simple little piece. It was the Sentencing (First Principles) Bill. It was only seven clauses long and it only ran for 4½ pages. That bill was soon overtaken by a government decision to rewrite the entirety of our sentencing laws and so the Sentencing Bill, in draft form, was released for comment in 2016 and we now have the bill before us.

One of the difficulties that we have had analysing this bill is that, whilst the current bill is close to the draft—

Members interjecting:

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): Order! The Hon. Mr Parnell deserves to be respected and the conversation should be taken outside. The Hon. Mr Parnell has the call.

The Hon. M.C. PARNELL: Thank you, Mr Acting President. Whilst the current bill is close to the draft, there have been some changes made, including numbering changes, which can make it a bit tricky to reconcile the submissions to the earlier bill with the version as tabled before us. Suffice to say for now, the current bill is comprehensive. It has 128 clauses plus a schedule, and it runs to nearly 100 pages.

If I can summarise the issues very simply, I think it comes down to this: what must judges take into account when they are passing sentence? What are judges allowed to take into account? What are they prevented from having regard to? At the end of the day, will a new sentencing regime, as envisaged by this bill, mean that prison rates go up or do they go down? Will the incidence of crime in our society go up or down as a result of this bill? Will the community be safer as a result of this bill? For those who are subject to sentences of imprisonment and those who are subject to home detention or the new intensive correction orders, will they be rehabilitated or will the revolving door of imprisonment spin ever onwards as it has done for decades?

I am reminded of the valuable contribution that was made to public debate in this area by Judge Peggy Hora, who was the Thinker in Residence back in 2010. In her report, she said that she would recommend criminal law reform and an integrated approach to the triumvirate that drives the legal system. This was her simplistic look at it. Three things drive the legal system: drugs and alcohol, mental health and family violence. Of course, we can all think of a few more things than that but when you look at the stats, that is the triumvirate, as she calls it. She pointed out that rehabilitation saves money and saves lives. To quote Peggy Hora:

Unless we are putting somebody away for the rest of their lives, everybody in prison is coming back to us.

She also said:

We need to punish the ones we are afraid of, and treat the ones that we are just mad at.

I recall, in her final address at the Adelaide Town Hall, she also posed the question: will offenders come out of the criminal justice system better or worse people than when they entered it? These are all issues that go to sentencing.

What appears to be driving a lot of the government's reforms in this area relates to efficiency in case management and that is because this bill is linked with the indictable offences bill that we have been debating here, and the problem of the backlog of cases in the District Court, in particular, seems to be in the driver's seat.

The idea is that, if you put more pressure on defendants to plead guilty early, this will avoid trial dates becoming vacated at the last minute, following a late guilty plea. As a result, we have this emphasis on early plea discounts. The government wants to encourage people to plead guilty early and that is why they have made sure that the best discounts, the biggest discounts, do not last too long. The government's fear is that if you keep the discount open for too long, the defendants will still wait until the last minute before taking advantage of it. I put the government's position to Ian Robertson, President of the Bar Association of South Australia, and his response was:

This is rubbish. The reason people wait is because they can't be properly advised. The large incentive at the front end promotes the buying of pleas, even absent actual guilt.

I do not want to talk in this contribution too much about the sentencing discounts for early pleas because we dealt with that at some length in the indictable offences bill and will, no doubt, deal with it again some more in committee, but I do want to talk about the role of sentencing as it relates to recidivism and as it relates to reoffending. One of the questions we have to ask ourselves is: what is the impact of locking people up on reoffending?

Interestingly in the Sentencing Bill, reducing rates of incarceration does not appear to be an objective of the bill. Of course, there are new sentencing options that provide alternatives to incarceration, including intensive correction orders, as well as existing options such as home detention. They may reduce the incarcerated prison population, but, on balance, my view is that the changes to the sentencing regime set out in this bill are more likely to result in more people being imprisoned, rather than less. I say that because of the bill's attack on judicial discretion and the removal of eligible considerations that might have reduced incarceration rates.

I rediscovered a little while ago a report that was put out by the government, entitled '10 by 20: Reducing reoffending—10% by 2020.' A strategic panel was created to write this report, and the Department for Correctional Services logo appears at the bottom of the front page. The strategic policy panel was tasked to investigate best practice in correctional services, policy and practice and to identify strategies that could impact and help reduce rates of reoffending, promoting rehabilitation and reintegration outcomes.

The strategic policy panel members are people who are pretty well-known to most of us: Mr Warren Mundine, Dr Lynn Arnold, Ms Amanda Blair, Professor Anne Edwards, Mrs Nikki Govan, Mr Mal Hyde and Mr Michael O'Connell, the Commissioner for Victims' Rights. Their report came out towards the end of last year. Its value lies not so much in its observations about sentencing, but in including some useful observations on recidivism and some of the things that go towards our very high incarceration rates. The strategic panel's report says:

There are many factors that drive the demand on prisons such as: demographic changes (e.g. population increase), government policies and sentencing practices of the Courts, which has seen longer sentences. In South Australia, the rapid rise in the prison population has occurred against the backdrop of an aging population and dramatic falls in the incidence of most major categories of crime. Imprisonment rates are not driven solely by conditions external to the criminal justice system, they are also strongly affected by factors such as legislation, policing, bail and judicial sentencing practices.

Clearly, the matters of substance in this bill go directly to incarceration rates. Again, according to the panel:

The South Australian prison system currently accommodates more than 2,900 prisoners in facilities that are operating near capacity. The projected prisoner demand shows that further investment would be required to accommodate growth in prisoner numbers. New prison infrastructure, without consideration of a reduction in reoffending, is anticipated to cost the taxpayer in excess of $500 million.

The panel usefully produced a chart in this report, which basically shows an upward line in terms of the prison population. That is the sort of 'steady as she goes and business as usual' scenario—prisoner numbers will continue to rise.

Repeat offenders are responsible for a large proportion of South Australian crime. Again, a statistic that the panel highlighted was that, as of 30 June last year, 74 per cent of South Australian prisoners had been imprisoned before—three-quarters had previously served time in gaol. It will be no surprise to members that the over-represented cohorts in this group included male offenders, young offenders and Aboriginal offenders.

One of the most remarkable statistics or trends is the growing South Australian prisoner population when overlaid with crime rates. We find that over the last 10 to 14 years crime rates have nearly halved, but incarceration rates have gone up by two-thirds. You have two lines that are growing further and further apart: the crime rate is dropping and the rate of gaoling people is going up. In some ways, it is remarkable. It has us thinking about the Monty Python sketch from the 1970s, where they talk about the best way to reduce the crime rate is to reduce the number of offences—and that sort of makes sense, because it is a linear thing. In this one we are reducing crime and increasing incarceration: it makes no sense.

We also need to consider the cost of the various sentencing options, because clearly what judges decide to do with defendants who are found guilty does have an impact on the public purse. Again, to quote from the 10 by 20 panel report:

Incarceration of offenders is expensive. According to the Productivity Commission, on average Australian prisoners cost the taxpayer $292 per day, in a system that costs the nation $2.6 billion in 2014-15. The average prisoner costs more than the average Australian's daily earnings—[which is] $216 (including weekends) according to the Australian Bureau of Statistics.

Though the costs of maintaining offenders in prison is high…South Australia has the second lowest cost per prisoner per day, following NSW. In 2014-15 the annual cost to maintain a person in a South Australian prison was approximately $96,326 annually, equating to $263.91 per day.

That is far in excess of the average Australian annual earnings. I guess there are a number of ways of looking at that, but the first take-home message is: it is really expensive. It would be cheaper to pay someone full time to hold the hand of a person rather than to put them in gaol. Now, that is unrealistic and I am not suggesting that is what we do, because certainly there are some people for whom prison is the most appropriate place, for a range of reasons.

The question that arises from that is: with this new Sentencing Bill, with these new sentencing options, what is the impact on public funds? What funding arrangements will flow from changes to the sentencing act if this bill goes through? What additional funds, if any, will be provided to the Department for Correctional Services? If there is a reduction in people being incarcerated, will any of that money be reinvested into other programs—rehabilitation programs, reintegration programs, crime prevention and reduction programs? What will flow from this bill? The answer might well be, 'Wait till the budget,' but I am keen to know before we complete the debate on this bill.

The next question that arises is the effectiveness of prison in reducing reoffending—remembering what I said before, that three-quarters of current prisoners have been there before. Again, the panel in its report last year said:

The high cost of imprisoning people and of potentially building new prison facilities highlights the importance of finding new and innovative ways to address reoffending. This reality also demonstrates the need for sustainable and long-term solutions to the issues of punishment, deterrence, crime reduction, community safety and offender rehabilitation and transition back to the community.

They go on to say:

Overall, given the high reoffending rate, the current effectiveness of prisons to reduce reoffending long term is problematic.

That is probably not rocket science for most people, but the take-home message is pretty clear: just locking up people does not of itself prevent reoffending. It might prevent them reoffending for the time that they are locked up but, as Peggy Hora said, unless they are in for life, they are all coming back to us eventually, and we need to do better than that.

A further question I would ask the minister to address is: this report came out the end of last year, 2016, and the government has nominated the first half of 2017 for its response. The government says that it will respond to the report recommendations through the development of an action plan to achieve the 10 per cent reduction in reoffending by 2020. My question is: when might we see that response? Might we see it before we finish debating this bill? What, if anything, in the government's response relates to sentencing and to sentencing options? How will the government reduce reoffending and therefore the need to resentence offenders who reoffend?

I want to put on the record a few remarks about mandatory minimum sentencing. This is something that we have been debating pretty well every year for the last 11 years that I have been here. The Greens have consistently opposed interfering with judicial discretion and the parliament setting mandatory minimum sentences, but it came to light and to public attention recently with the fairly notorious case—and I use the word 'notorious' in the sense that it was on the news a lot—of the man who killed another person in a motor vehicle crash.

He was found to have been watching a DVD rather than paying attention to the road. This is the case of the wrestling DVD that was apparently on a dashboard monitor that he had in his car, which raises the issue of why on earth you would allow television-type monitors in the front of a car. I can understand kids watching something in the back on a long road trip, but why on earth you would allow that escapes me.

Anyway, on 4 May, not that long ago, District Court Judge Paul Muscat heard the case and had to determine what an appropriate sentence might be. There were two hearings a week apart, and I would like to refer to some of the judge's observations. I take my remarks from the online report of the ABC. Rebecca Opie was the reporter. On 4 May this year, she said:

A South Australian judge has described having to impose a mandatory minimum jail sentence on a man found guilty of death by dangerous driving, who he said was of otherwise good character, as 'disheartening'.

District Court judge Paul Muscat has heard sentencing submissions for Mitchell Deane Franklin, 28, who was watching a wrestling DVD when he caused a fatal crash on the Augusta Highway near Port Germein in June 2013.

Harvie Spencer, 86, was killed instantly when Franklin's ute rear-ended his car at up to 110 kilometres per hour.

The article goes on to quote Judge Muscat:

'There's no doubt Mr Franklin is a good man, he's a good son, a good husband to his wife and a good father to his children…

In every respect, apart from the commission of this serious offence, he's a good citizen.'

It goes on:

Judge Muscat said it was 'just extraordinary' that Parliament had 'seen fit to prescribe a mandatory minimum non-parole period for the offence'.

'Of all crimes one has to sentence for in this court, this is the one that troubles most sentencing judges because, more often than not, the offender is a man of otherwise good character,' he said.

'Yet four-fifths is the minimum non-parole period, which is not the case if I was sentencing a sex offender, a drug dealer, an armed robber.'

A week later, the matter is back in court and His Honour has to finally determine the penalty. Again, I am quoting from Rebecca Opie's online article, this time from 11 May:

Judge Paul Muscat described the task of sentencing a man who was otherwise of good character as 'no easy exercise', but conceded Franklin's offending was too serious to warrant a suspended sentence or home detention.

'No court can ever evaluate the worth of another human being's life,' he said.

'There are few crimes where the lives of so many are affected than causing death by dangerous driving.

And to think it could have all been avoided if you simply obeyed the road rules.'

The article went on, and the reporter said:

Judge Muscat said he was constrained by the mandatory minimum non-parole period of four-fifths of the head sentence required by law for the offence of causing death by dangerous driving.

The final quote from the judge:

'One can debate the utility of prescribing an 80 per cent non-parole period for this crime in your circumstances as opposed to other crimes perhaps considered more heinous in nature,' he said.

'However, Parliament creates the law and it's the court's duty to apply it.'

I put that on the record because all the laws that we have passed in this place in relation to minimum mandatory sentencing are reinforced in the current bill. The government has not had any change of heart, it has not removed any of them, so they all still remain. As far as I am concerned, the Greens will continue to oppose them as they crop up.

I want to refer briefly to some amendments that will be tabled, hopefully, fairly shortly. With a bill of this magnitude and complexity it is tempting to take to it with the scissors but I have settled on two simple amendments: to reinstate into the list of sentencing considerations two important principles that have been deleted in the current bill.

In the list of sentencing considerations currently in section 10 of the Criminal Law (Sentencing) Act there were three things deleted from that section when the current bill was drafted. I want to put two of them back in. They are as follows: I want judges to be able to take into account the probable effect any sentence under consideration would have on dependents of the defendant; and, secondly, the catch-all provision 'any other relevant matter'. They are in the current law and they have been removed from this bill.

I mentioned Ian Robertson of the Bar Association and, in discussions with him on this matter, he makes the observation that there would appear to be no evidence to justify the removal of those provisions and, therefore, no mischief to which it is directed. Obviously, I am going speak more about those amendments when we get to the committee stage, but I want to make the point about why taking into account the effect on the dependents of the defendant should be a relevant consideration, and that is to look at the rates of incarceration of children whose parents had been in gaol, whether it was one parent or both parents.

The statistics are quite remarkable. For example, there was one study that was done in the US that basically concluded that imprisoning a parent increases the likelihood of their children becoming incarcerated by up to six times. I am not saying that every defendant should be able to get out of gaol, if you like, or keep out of gaol by saying, 'You can't gaol me; I've got kids.' That is not going to fly in every case but is it something that is irrelevant? Is the fact that an offender might have children or might have ageing parents to look after completely irrelevant? Is it such a consideration that the judge must be precluded from taking it into account? I do not think so.

There are also recent reports in Victoria that support the findings of the US study. They suggest that incarcerating parents has profound, long-lasting and detrimental impacts on children. The impact could be that the children have to go into care or they lose their home or an elderly parent has to go into care. There are a whole range of consequences and I will go into more detail when we get to that part of the committee stage of the debate.

If we are serious about reducing overall crime rates, then it makes no sense to prohibit a judge from taking into account the effect that incarceration of a defendant might have on the people who depend on them. It is not a 'get out of gaol card' but it is a consideration for a judge who has heard all of the other evidence.

In terms of allowing judges to take into account anything else that is relevant, my question is: why not? Why can't they do that? What is wrong with allowing a judge who has heard some special, unique, unforeseen circumstance that may be relevant to sentencing from taking it into account? The government really has no answer to that question. If I look at what the minister said in the second reading speech in relation to this, the reform of the general principles of sentencing, he said:

The current Act contains a list of sentencing considerations. It is in s10. There is about 2 pages of it. It is just a huge list of everything that might be taken into account if possibly relevant (or not). It was an advance for its time. But it is not helpful, either to the courts or to the public. It is just a huge obscure shopping list. It is proposed that it be repealed.

If the government was serious in those words it would not have reinstated 95 per cent of it back into the bill. It is clearly a useful exercise. Originally, it was the codification of sentencing principles that judges had developed over centuries and were taking into account anyway. A couple of decades ago, they wrote them all down, they put them into an act of parliament and, under this Sentencing Bill, they are doing it again. They are still putting those things back in.

That is fine; I am not objecting to that. Most of the sentencing considerations are sensible. I am not even going to object to the primary consideration, which is keeping the community safe. That will fly well with people. They will understand that, when it comes to gaol in particular, that is one of the things we want to do in incarcerating prisoners—keep the rest of us safe. I am not objecting to that. What I am objecting to is the removal of two of these important sentencing considerations, which effectively means judges will not be able to take them into account. If you believe in judicial discretion, you should believe in allowing judges to take all relevant matters into account, whether it is something parliament has thought of or not. I will hopefully get those amendments circulated fairly soon.

Finally, I would like to thank the members of the legal profession who have taken the time to write to me and to talk to me about this bill: Tony Rossi of the Law Society, Ian Robertson of the Bar Association and his colleagues Anne Barnett, Bill Boucaut and David Edwardson. I would also like to thank Will Evans of the minister's office, who has systematically worked through our concerns and has helped us work through the concerns of the Law Society and the Bar Association. It is probably fair to say he has alleviated some but not all of them. At least he has got us down to only two amendments. As I have said, for a bill of this size, there could have been many more, but I do thank him for his diligence in talking to us about our concerns.

With those remarks, the Greens will be supporting the second reading and we look forward to the committee stage, presumably in the next sitting week, when we can look at amendments that have been filed by the Liberal Party already and are soon to be filed by the Greens.

Debate adjourned on motion of Hon. J.E. Hanson.