Sentencing Bill

Committee Stage

In committee.

(Continued from 20 June 2017.)

Clause 1.

The Hon. A.L. McLACHLAN: I indicate for the benefit of honourable members that we will be supporting the government's amendments—a rare occurrence. We will obviously be moving our own amendment. We are not supporting the Greens' amendments and we are not supporting the Hon. Mr Darley's amendments.

Clause passed.

Clauses 2 to 10 passed.

Clause 11.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–2]—

Page 12, after line 28 [clause 11(1)]—After paragraph (g) insert:

(ga) the probable effect any sentence under consideration would have on dependants of the defendant;

The purpose of this amendment is to reinstate into the sentencing considerations the ability for the court to take into account the probable effect any sentence under consideration would have on dependants of the defendant. That does not mean that just because a person has children or elderly parents they are going to avoid gaol, but it says that the court can take into account what the impact on their dependants might be. That is a provision that has been in South Australian law for many years and the Greens believe that it should stay in there. The government's bill does not include that provision and we think that is an oversight.

It goes without saying, and I think the minister in his second reading summing up acknowledged, that, of course, there is always an adverse impact on dependants of people who are sent to gaol. I am not suggesting that just because someone has children they should not go to gaol, but you can imagine situations where it is lineball, where the judge is tossing up whether to suspend a sentence or whether to order home detention, rather than a period of incarceration.

Whilst it might only be a minor factor, we are talking about the drawing of lines. Sometimes you fall one side of the line, sometimes you fall the other. If you have a lineball case and the judge is considering that there might be seven children who will end up in state care as a result of their mum or dad going to gaol, and they were not sure that a custodial sentence was really necessary, it might be a factor that would allow the judge to make a different decision. I can see no reason to remove it from sentencing considerations and my amendment seeks to put it back in.

The Hon. P. MALINAUSKAS: The government opposes the amendment. I have discussed the law on this matter in the second reading speech in reply. In summary, the common law is that the court should not give substantial weight to the effect of any sentence on third parties unless the circumstances are highly exceptional. This is founded on the observation that hardship to spouse, family and friends is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a criminal court.

Courts applying the existing provision have read down the provision to include the common law limitation that the circumstances should be exceptional. That being so, the inclusion of this statement in the law would be wrong. Not only that, it would also be contrary to all that these statements of principle are meant to be. The idea is that the law on sentencing, as complex as it is and as subjective as it is, should be as transparent as possible.

The New South Wales Law Reform Commission, whose recommendations form the starting point for this part of the exercise, observe that:

The common law in NSW on this matter is well known and including this factor in the proposed provision would be redundant and cause confusion.

The government opposes the amendment and we implore the chamber to also oppose the amendment.

The Hon. M.C. PARNELL: I did hear the Hon. Andrew McLachlan earlier say that he was not supporting this amendment, so I can see where the numbers are on it. I will just make the observation though that, as the minister said, the courts should not put substantial weight on this consideration unless there are exceptional circumstances. The way the government has drafted this law, substantial weight or insubstantial weight (10 tonnes or a feather), the courts will not be able to take it into account at all to any degree—at all, ever. I think the minister is overstating the case.

There is a list of sentencing considerations and all I am saying is that this should be one of them. The Greens' position has always been to support judicial discretion. The judges will decide how much or how little weight to attach to these considerations. However, I can see where the numbers are and, whilst I am disappointed, I will not be dividing.

The Hon. J.A. DARLEY: For the record, I would support the Greens' amendment.

Amendment negatived.

The Hon. M.C. PARNELL: I move:

Amendment No 1 [Parnell–3]—

Page 12, after line 29 [clause 11(1)]—After paragraph (h) insert:

(i) any other relevant matter.

My memory is that I split my original amendment into two parts so they could be moved separately in the vain hope that members might feel able to support one but not the other, so I will test the second of these. The arguments are similar to the ones I have just outlined in relation to the court being able to take into account the effect of a sentence on the dependence of the defendant. That was in the original section 10 sentencing considerations. Another factor that was in the section 10 considerations was the catch-all provision at the end, 'any other relevant matter'.

Basically, what that did is it gave to judges the ability to take into account, in imposing sentences, things that they believed were relevant, and it gave them the ability to do that. By removing the words 'any other relevant matter' the parliament is effectively trying to constrain the judiciary to make sure that they only take into account a more limited range of sentencing considerations. I think, at a fundamental level, that is just the wrong way to go.

It has been a battle in this place for the last 10 years or so between the parliament effectively trying to tell judges what to do and allowing judges to exercise their discretion. We see it in minimum mandatory sentencing and we are seeing it now in sentencing considerations. I make the point again, these words have been in the law for years and years and years. I cannot say exactly how many, but they are certainly in section 10 of the current sentencing laws.

Unless we put these words back in, we are effectively tying the hands of our judges and they will not be able to take into account clearly relevant factors unless it is something that the parliament has identified through this now more limited list of considerations. I would urge members to give our judges the discretion that they need so they can take into account anything that is relevant, and the parliament should not stop them from doing that. I move the amendment standing in my name.

The Hon. P. MALINAUSKAS: The government opposes this amendment. Insofar as this amendment says anything that is correct in law, the amendment is redundant. Clause 11(2) provides:

The matters referred to in subsection (1) are in addition to any other matter the court is required or permitted to take into account under this Act or any other Act or law.

This is the correct way to put any residual statement. To widen it to anything at all that might be relevant either says nothing at all, for a matter should only be relevant if a law says it is, or it says something entirely wrong and misleading, which is that if a matter is relevant it must be taken into account, which is not the rule of law. In any event, the inclusion of this phrase again contravenes the policy of transparency and openness set out in my comments on the last amendment. This amendment should be opposed.

The Hon. A.L. McLACHLAN: As I indicated before, the Liberal Party will not be supporting this amendment. As much as it personally appeals to me, the Liberal Party has declined to support it.

Amendment negatived.

Progress reported; committee to sit again.

At 16:07 the council adjourned until Tuesday 4 July 2017 at 14:15.