Bills

Sentencing Bill

Committee Stage

In committee.

(Continued from 22 June 2017.)

Clause 11.

The CHAIR: We left off at clause 11.

Clause passed.

Clauses 12 to 42 passed.

Clause 43.

The Hon. P. MALINAUSKAS: Amendment No 1 [Police–1]—

Page 36, after line 11 [clause 43(8), definition of chief officer]—After paragraph (a) insert:

(ab) in the case of the Independent Commissioner Against Corruption—the Independent Commissioner Against Corruption;

This amendment has the effect of making the Independent Commissioner Against Corruption a law enforcement agency for the purposes of a provision dealing with reduction of sentence for cooperation with a law enforcement agency. The commissioner requested the amendment and it was recommended by the Crime and Public Integrity Policy Committee of the parliament.

The Hon. A.L. McLACHLAN: The Liberal opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 44 to 56 passed.

Clause 57.

The Hon. P. MALINAUSKAS: I move:

Amendment No 2 [Police–1]—

Page 49, after line 25—After subclause (4) insert:

(4a) The Supreme Court may, if the Attorney-General has made an application under subsection (3) in respect of a person who is in prison serving a sentence of imprisonment, make an interim order that the person is to remain in custody pending determination by the Supreme Court as to whether to make an order under this section that the person be detained in custody until further order.

This amendment amends the provisions dealing with the indeterminate detention of habitual sex offenders so that the court may order a person subject to an application for a detention order to be held in custody on an interim order even though a determinate sentence applying to that prisoner has expired.

The Hon. A.L. McLACHLAN: The Liberal opposition will support this amendment.

Amendment carried; clause as amended passed.

Clauses 58 to 71 passed.

Clause 72.

The Hon. P. MALINAUSKAS: Amendments Nos 3, 4 and 5, all correct typographical errors. I move:

Amendment No 3 [Police–1]—

Page 61, line 1 [clause 72(1)(a)(ii)]—Delete 'defendant' and substitute 'person'

The CHAIR: There are a number of amendments in between so we will do this one. Is everything alright?

The Hon. A.L. McLACHLAN: Everything is okay with me, and also, the Liberal opposition supports the amendment.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 61, lines 2 to 4 [clause 72(1)(a)(iii)]—Delete subparagraph (iii) and substitute:

(iii) attendance at—

(A) a place for the purpose of undergoing assessment or treatment (or both) relating to the person's mental or physical condition; or

(B) an intervention program; or

(C) any other course of education, training or instruction, or other activity,

as approved or directed by the home detention officer to whom the person is assigned;

The first amendment is part of my package of amendments. Whilst the first two amendments are in relation to home detention orders and Darley amendments Nos. 3 and 4 are in relation to intensive correction orders, they essentially achieve the same outcome and so I will speak to all four amendments now.

My amendments make it clear that if the court believes that an intervention program will aid in a person's rehabilitation, then the courts must include participation in an intervention program as part of the sentence. I acknowledge that these are matters that may already have been considered. However, I do not think this is good enough and I think that intervention programs should be compulsory, provided that the courts believe that it will assist in rehabilitation. It was interesting to read Judge Mary-Louise Hribal's comments in the paper on 29 May. She threw her support behind the intervention programs. She said:

What the programs do is show defendants what is possible and challenges them to do better, many take up that challenge.

She goes on to say:

For some offenders and some crimes, intervention programs provide a way to address the underlying chronic behaviours of defendants. The areas that have shown to respond to this type of intervention are substance abuse, mental illness, gambling addiction and domestic violence.

The article concludes with these comments:

Treating drug dependence, mental health problems and domestic abuse are ways of trying to break the offending cycle. The aim is to keep the community safer while encouraging defendants to lead productive law-abiding lives—that way, we all benefit.

I agree wholeheartedly with these comments. The intent behind my amendments is not to punish offenders by forcing them to attend an intervention program but rather to provide assistance to them to address their issues and, in turn, hopefully have them contribute positively to society. I commend my amendments to the chamber.

The Hon. M.C. PARNELL: Because there are a number of amendments in relation to clause 72, I will put our position on the record. We are supporting the government's amendments. In relation to the Hon. John Darley's amendments, there are two that relate to conditions of home detention orders. We have no difficulty supporting the first amendment in its entirety. The second amendment I think is a little bit problematic because the proposed new paragraph (ha) makes it a mandatory condition that a person undergo assessment or treatment or both relating to the person's mental or physical condition.

The way I read that is that, even if the judge is minded to order a home detention order, the result is that the person is going to go to gaol because it would take time for that assessment to be done. If it took a month and if the person was only sentenced to a month, effectively home detention is not an option for that person. That is a difficulty we have with the proposed insertion of paragraph (ha). Paragraph (hb), on the other hand, I think is very reasonable. It basically says:

If the court considers that participation in a suitable intervention program might assist in the person's rehabilitation a condition requiring the person to participate in such a program;

I think that makes sense. Thinking at a practical level—and, again, I am informed as much by news reports as anything else—you often hear, when someone is about to be sentenced, that the judge will order some forms of psychiatric assessment before sentencing. I would have thought that, if that assessment was ordered before sentencing, that would help inform the judge as to whether home detention might be appropriate, and also inform that it be made a condition of home detention that they actually undertake this program of rehabilitation. It makes sense that it could come from the pre-sentence psychiatric assessment—it is not universal; judges do not have to do that, but they often do—and that would mesh well together. I am saying this to assist the council in terms of how this amendment is going.

In terms of Darley amendment No. 2, the Greens would be inclined to oppose the insertion of paragraph (ha) but support the insertion of paragraph (hb), which means that if the amendment could be split—and it might be academic if nobody else is supporting any of them—and if the council supports the idea of court-ordered intervention programs and we can split Darley amendment No. 2, I think we might, in our view at least, get a good result.

In relation to Darley amendments Nos 3 and 4, which do relate to a different clause–but as he spoke to them all, I will just mention it now–I do not think they suffer from that same problem, and we are happy to support them both.

The Hon. K.L. VINCENT: Just to assist the council and to speed things up a little bit, I put on the record all of Dignity Party's intentions with regard to amendments to this bill. We support the Parnell amendments, the Darley amendments and the government amendments and, as much as it pains me, we oppose the McLachlan amendments.

The Hon. P. MALINAUSKAS: The government supports the first Darley amendment. If the Hon. Mr Darley's amendment No.1 passes, the government will withdraw amendment No. 4.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 5 [Police–1]—

Page 61, line 21 [clause 72(1)(h)]—Delete 'defendant' and substitute 'person'

Again, this is just a correction of typographical errors.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 2 [Darley–1]—

Page 61, after line 22 [clause 72(1)]—After paragraph (h) insert:

(ha) a condition that the person undergo assessment or treatment (or both) relating to the person's mental or physical condition;

(hb) if the court considers that participation in a suitable intervention program might assist in the person's rehabilitation—a condition requiring the person to participate in such a program;

I have already spoken about it.

The Hon. M.C. PARNELL: Depending on what other members have to say about it, this is the one where I said that if the amendment could be moved in two parts we would like to support the inclusion of the new paragraph (hb), but that we do not support (ha), for the reasons I outlined before. If that is possible and depending on what other members want to do—if everyone else is opposing the whole lot there is no point, but we will see how we go.

The Hon. P. MALINAUSKAS: If I could enlighten the chamber in that context, the government opposes both parts of the Darley amendments.

The Hon. A.L. McLACHLAN: I think I may have previously indicated, when we were in committee, that we oppose this Darley amendment.

Amendment negatived.

The Hon. A.L. McLACHLAN: I move:

Amendment No 1 [McLachlan–1]—

Page 61, after line 24—After subclause (1) insert:

(1a) The following limitations apply in relation to an approval that may be given by a home detention officer under subsection (1)(a):

(a) approval for a person subject to a home detention order to leave the residence specified by the court in the order at which the person must remain for any purpose allowed under subsection (1)(a) may only be given if the aggregate of the periods of absence from the residence would be less than 12 hours in any 24 hour period;

(b) participation by a person subject to a home detention order in a sporting activity in respect of which the person receives remuneration may not be approved to be remunerated employment for the purposes of subsection (1)(a)(i).

(1b) The limitations imposed by subsection (1a) may only be varied or revoked by the court if the court is satisfied, by evidence given on oath, that there are cogent reasons to do so.

If I recall correctly, I do not believe that I have the numbers to be successful in moving this amendment, so I would ask members to indicate their position in relation to this clause at the conclusion of my explanation. The genesis of this clause lay in an article in The Advertiser bringing the attention of the public to a person on home detention, who seemed to be living a life unencumbered by home detention, which is why it reached the attention of the press. This is an attempt to rectify that problem. I understand that the government has some technical objections. They argue that it is within the discretion of the authorities to decide the extent of home detention and therefore this clause is not required.

However, its motivation is to set, effectively, what home detention is, or at least a minimum benchmark of what the person must do at home, rather than live a life virtually unencumbered, other than, probably, by a bracelet. Of course, the person who came to the attention of the media was a professional sportsman, and the argument behind this clause is that a sporting activity should be considered a privilege, not something that should be undertaken whilst in home detention. As I said, I do not think I have the numbers for this one. If members can indicate, it will alleviate the need for calling a division.

The Hon. D.G.E. HOOD: I indicate to the Hon. Mr McLachlan that the Australian Conservatives will be supporting the amendment. I think it is eminently sensible and, for that reason, we will support it.

The Hon. M.C. PARNELL: The Greens will be opposing this amendment. We believe it is unnecessary and unworkable. I note that even the Bar Association, representing defendants, does not support it. So, we are not supporting it.

The Hon. J.A. DARLEY: I do not think this amendment is necessary and I will not be supporting it.

The Hon. P. MALINAUSKAS: The government is opposing the amendment because it seeks to limit the ability for a home detention officer to permit a detainee to be absent from a residence for more than 12 hours in any 24-hour period and to prevent a home detention officer from permitting a detainee to engage in employment and earn an income, if that employment has to be related to a sporting activity. Firstly, in relation to the 12-hour restriction, it is acknowledged that the opposition amendment is seeking to ensure that home detainees are in fact detained, unless they have a genuine need to be at work or at medical appointments and the like.

However, the amendment is misconceived. Many offenders work overtime or long shifts. When combined with travel time, this may well exceed 12 hours. It is not possible to go back to a court quickly to approve someone working a double shift, for example. However, home detention officers can do that, and they can do it quickly without compromising community safety or, indeed, the offender being in a job. If we overly restrict the ability legislatively, people on home detention will become unattractive to employers. This is counterproductive. Employment is a significant predictor of successful rehabilitation and reduced reoffending.

I ask honourable members of the council to consider this: if a person on home detention were to lose employment based on an inability to commit to the required hours, this may lead to a situation where a detainee loses the ability to pay rent on their property, therefore having to be committed back to prison, not because they are not suitable for home detention but because they lost their ability to pay rent for their home due to an overly prescriptive legislative regime.

It is also based on a misunderstanding of the current processes surrounding how home detainees are granted permission to attend employment or medical appointments and the like. Under the existing provisions, all employment must be approved by a home detention officer, taking into account factors specific to the prisoner. Even with approved employment, they are not permitted to just leave their premises without prior approval from their home detention officer. They must obtain a pass out.

The timing of pass outs to attend already takes into account the work requirements or shifts that have been approved and the time it should take to get to and from work. It does not permit an offender to remain absent before or after work finishes. It does not even permit them to pick up a loaf of bread on the way home without prior approval. However, it is flexible enough that if a prisoner is offered overtime or an extra shift, that can be negotiated and approved by the home detention officer quickly.

Notwithstanding all this, the government has already clarified the provision in the existing sentencing act permitting home detainees to undertake employment in this bill. It has spelt out the existing process so that there can be no doubt. It was already the case that the home detainee was subject to a provision requiring them to remain at their residence and not leave except for specified purposes, one of which is remunerated employment. The reference to remunerated employment in the bill is in section 72(1)(a)(i) and now states:

attendance at such remunerated employment at such times and places as approved from time to time by the home detention officer to whom the person is assigned during the period of the home detention order.

Further, there other situations where a leave pass greater than 12 hours may be required. For example, an offender may live in a more remote regional area and have a specialist medical appointment in Adelaide, when the travel time and procedure will take more than 12 hours. Again, it is not always practical to go back to court to approve these types of absences, but the home detention officer is in a position to check the appointment with the medical rooms, set out the approved travel time to get there, and make sure the pass out is tailored to permit the prisoner to get there and back, but not remain away from their residence any longer than is absolutely necessary.

Similarly, the proposed restriction on participating in sporting activity is simply not necessary. It creates an extra layer of legislation for a home detention officer to be concerned with instead of getting on with supervising the prisoners allocated to them. The current arrangements are sufficient to enable a home detention officer to ensure that prisoners are not rorting the system to play sport. I have already outlined the process for having employment improved and the need to obtain pass outs, etc. It is onerous, as it should be, but it already ensures that prisoners are not able to game the system.

This proposed amendment is again the product of sensationalist statements made in the media based on a now infamous prisoner who tried—and failed—to game the system by trying to get permission to play football. What appears to be completely overlooked here is the fact that permission in the case was not granted. The existing system worked, and the amendment is opposed by the government on this basis.

Amendment negatived; clause as amended passed.

Clause 73.

The Hon. P. MALINAUSKAS: I move:

Amendment No 6 [Police–1]—

Page 62, after line 41—After subclause (5) insert:

(5a) A person who appears before the court as required by a summons issued under this section may be remanded in custody pending determination of the proceedings.

With the indulgence of the chamber, I will seek to address amendments Nos 6 and 9 together, as they are all on the same subject.

The CHAIR: You can address them together, but they cannot be moved together.

The Hon. P. MALINAUSKAS: Very well. These amendments relate to court proceedings if a home detention order or an intensive corrections order is breached. They ensure that the court has the discretion to remand a person in custody pending determination of breaches if the court thinks it necessary to do so. At present, the court clearly has the discretion when a person appears following arrest or pursuant to a warrant, but not if a person appears in answer to a summons.

Although the existing provisions already ensure that a person who breaches a condition of their home detention or intensive corrections order can be brought into custody immediately when necessary, the government is of the view that the court should have the discretion to determine when a person facing breach proceedings should be remanded in custody irrespective of how they came to be before the court.

The Hon. A.L. McLACHLAN: To ease your burden, Mr Chairman, can I indicate that the opposition supports the remaining government amendments.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 7 [Police–1]—

Page 63, line 5 [clause 73(7)]—Delete 'or released on bail'

Amendment carried; clause as amended passed.

Clauses 74 to 81 passed.

Clause 82.

The Hon. J.A. DARLEY: I move:

Amendment No 3 [Darley–1]—

Page 66, after line 40 [clause 82(1)]—After paragraph (g) insert:

(ga) if the court considers that participation in a suitable intervention program might assist in the person's rehabilitation—a condition requiring the person to participate in such a program;

I have already spoken about this amendment.

The Hon. M.C. PARNELL: The Greens will be supporting both of these amendments to clause 82—amendments Nos 3 and 4, [Darley-1].

The Hon. P. MALINAUSKAS: The government opposes the amendments to insert a discretionary provision into a list of mandatory conditions in clause 82. While amendment No. 4 proposes to remove the existing discretionary provision from the list of other discretionary provisions in the clause, the amendment does not give the court greater or wider discretion to make orders. The existing provision is sufficient to enable the court to make the necessary orders if it considers them appropriate. This amendment is simply unnecessary.

The Hon. A.L. McLACHLAN: We oppose the amendments.

Amendment negatived.

The Hon. J.A. DARLEY: I move:

Amendment No 4 [Darley–1]—

Page 67, line 20 [clause 82(2)(d)]—Delete paragraph (d)

I have already spoken about the amendment.

The Hon. P. MALINAUSKAS: The government opposes this amendment as well.

The Hon. A.L. McLACHLAN: We are in opposition.

Amendment negatived; clause passed.

Clause 83.

The Hon. P. MALINAUSKAS:

Amendment No 8 [Police–1]—

Page 69, after line 10—After subclause (5) insert:

(5a) A person who appears before the court as required by a summons issued under this section may be remanded in custody pending determination of the proceedings.

Amendment carried.

The Hon. P. MALINAUSKAS: I move:

Amendment No 9 [Police–1]—

Page 69, line 15 [clause 83(7)]—Delete 'or released on bail'

Amendment carried; clause as amended passed.

Remaining clauses (84 to 128), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (12:13): I move:

That this bill be now read a third time.

Bill read a third time and passed.