Bills

Criminal Law (Sentencing) (Mandatory Imprisonment for Serious Domestic Violence Offenders) Amendment Bill

Introduction and First Reading

The Hon. R.L. BROKENSHIRE (17:47): Obtained leave and introduced a bill for an act to amend the Criminal Law (Sentencing) Act 1988. Read a first time.

Second Reading

The Hon. R.L. BROKENSHIRE (17:47): I move:

That this bill be now read a second time.

I thank the whips and my colleagues for allowing me to introduce this bill now. I have in the house two victims of serious domestic violence, Emily Cartlidge, and a beautiful young two-year-old named Evie, with her father Shane. Evie needs to be able to go home to dinner, but the families were keen to be here to support the introduction of this bill. I give notice that I do intend to put the bill to a vote in this house before we rise at the end of this session.

The impetus for this bill was the case of domestic violence perpetrated against a brave young lady for whom I have huge respect and support. She is very keen to do what she can, along with many other people right across the nation, to ensure that we prevent, wherever possible, all domestic violence including, of course, where the perpetrator commits incredibly serious domestic violence with sometimes the most tragic outcomes.

I have had several meetings with Emily Cartlidge and her mother and father and I congratulate them all on their strength in fighting for this, and I also congratulate Shane and Evie and Shane’s family for championing this, as well, because they do not want to see a situation such as that which happened to Evie occur again. Unfortunately, Emily's case is not isolated. Domestic violence is a significant issue in our community.

All violence is abhorrent—and members would know that I also have a coward's punch bill before the house—but with respect to domestic violence, people are in a very privileged position because they are sharing a home with a partner, a spouse or children. There is a privilege with that, but with that privilege also comes the responsibility to ensure the environment within that home is safe.

We are inundated with stories of crimes committed against women and children, and also, although I acknowledge to a lesser extent, against men. However, what we are all too frequently seeing is leniency within the courts when it comes to handing down judgements against perpetrators of domestic violence. In a nutshell, this bill imposes a mandatory sentence of two years' imprisonment on people who commit a serious domestic violence offence, regardless of whether this offence was committed by an adult or a youth. It actually has some parallels to two pieces of legislation that the government has before this house at the moment. I talked about that yesterday when one bill was debated, and I will talk more about it when the other bill is debated.

A serious domestic violence offence will apply to those: in a close personal relationship; a parent/child relationship; grandparents; spouses, former spouses, domestic partners and former domestic partners; a child of the offender, the spouse or the former spouse; and a child of the domestic partner or former domestic partner. It will also apply to female genital mutilation and to incest.

There is a petition running at the moment on Change.org, and as of this morning my office noted that 3,295 people had signed that petition. I also have a huge number of people I have yet to find the time to get back to—but I will—who have contacted me very keen to see multi-partisanship with this piece of legislation, because they have also been subject to serious domestic violence.

It is heartbreaking when you hear the stories, and today I will highlight two stories just to give colleagues and the community in general, who may inquire into what we are doing with this bill, an opportunity to understand just how horrendous it is. I do this with the approval of both Emily and, in Evie's case, of her father and protector Shane. I will not go into all of the gruesome detail, obviously, because it is horrendous; it is very hard to highlight it because it is so horrendous.

On 23 January 2016, Emily Cartledge was what I can only describe as brutally beaten by her then partner. Emily had been in a relationship with that partner for approximately seven months. During that time Emily noted her partner starting to demonstrate possessive behaviour such as monitoring her social media accounts and stalking her at work. The couple began counselling and, on the recommendation of the counsellor, her partner moved out of the house.

On the night of 23 January, he arrived back at Emily's house unannounced, and she let him in to discuss the relationship as well as a proposed trip to Bali that they had planned for the following month. Her partner was annoyed that Emily no longer wanted to take the trip, although it was her right to decide not to take it. He then jumped on top of her and hit her approximately eight times to the head and face, and a very serious physical assault that I will not go into occurred from there.

Fortunately, after Emily had been seriously injured, as a personal trainer and a fit young lady she was able to get out of the home even though her then partner had locked the back door and made it difficult for her. Had she not been so fit and intelligent, and had she not still had control of herself, she may not have been able to come to see me to say that something needed to be done. Her then partner then went on to harm himself and was admitted to hospital, but I will not go into that.

In submission arguments neither counsel seriously contended that the perpetrator's behaviour did not warrant incarceration. In other words, through the DPP, Crown law and also with respect to the defendant's lawyer, I understand that they realised there would be some form of incarceration. However, Michael Hayes, the perpetrator, walked away with just a 12-month sentence which was suspended and he entered into a $200 good behaviour bond for a period of three years. So, the sum of his total incarceration was five days' detention under the Mental Health Act and five days' incarceration where there were issues surrounding his bail agreement.

I am advised that Emily still fears for her life and that her attacker will finish the job if he has the opportunity. The handling of the matter and correspondence with the DPP at times inflicted further trauma as the people on the other end, whilst arguably trying to do their best, did not speak with trauma victims in the best possible manner, and that only made it more difficult for Emily and her family.

It was an appalling offer for an ex-gratia payment, in my opinion, particularly when you look yesterday in the Auditor-General's Report at just how much money is now in the Victims of Crime Fund, which did not reflect the pain and suffering inflicted by this case. It is an allegation we hear all too often with ex-gratia payments.

As a result of what was a totally unprovoked attack, Emily has used all of her long service leave and her annual leave, totalling around $13,000, but she only receives a percentage of that back under a claim. The claim does not take into account that the majority of her furnishings had to be thrown out because they were bloodied or damaged from the attack or the ongoing mortgage payments for a property she can no longer live in or return to or the cost and trouble associated with having to change jobs to distance herself from her attacker. In her own words, Emily said:

I can't describe to you what it's like at 31 years old to move back in with my parents, and never ever return to my home that I purchased in 2009. You can't compensate me for the $6500 refurnish I had just completed, the new couch, bed, rugs and linen and full paint job. You can't fix the paranoia I feel on a daily basis, the fear of being followed and the terror at night where I wake up screaming. You can't change the QC's glowing recommendation of [the perpetrator] or [the judge's] decision. You can't give me back my long service leave and all my sick leave accrued over 12 years as an exemplary employee…I sleep by taking medication at night, and have the light on like a 5 year old...I have nightmares of you standing over my bed with a knife…I wake my parents at night as they hear my shuffling around the house, unable to sleep or rest. Driving alone terrifies me as I'm petrified you will see me out.

Emily struggles some days to go to work. She has a very good employer, and I acknowledge and thank that employer for their understanding. She is also a brilliant employee. She has to wake at 5.30am so that she can get to work by 8.30am just to get herself ready mentally for work. She struggles greatly in that three-hour period to get prepared and there are days when she is unable to go to work. Thankfully, she has the benefit of a somewhat understanding employer, as I said, and gets flexible working hours. However, it never should have come to this. Emily should have been properly protected by the system.

Emily now suffers depression, insomnia, hypervigilance, agoraphobia, anxiety and PTSD as a result of this attack. Whilst I am confident with all the support that Emily has around her that she will get back to full, strong health, she suffers with many of these issues today and it will be some years, I am advised, before she will be able to be totally well again. Emily said in her victim impact statement:

What do I do with all the words left unsaid, the pain I still feel and the questions I still have? You have permanently fractured me. I will forever carry these scars.

I turn now to Evie's case. During the drafting process for this bill, the case of little Evie made headlines. I am happy to confirm that little Evie's matter, I am advised by my legal advice, also falls within the ambit of this bill. So, it will deal with a young child's situation as well as an adult's.

The perpetrator, the mother of eight-month-old Evie, was charged with aggravated assault causing harm with intention to cause harm, which carries a penalty of up to 13 years. The offence was aggravated because it was against her own child. On the day of offending, the perpetrator called 000 stating that she wanted to throw her daughter off the balcony. Police then attended the scene and found little Evie with significant bruising all over her face.

It was initially alleged that Evie had fallen at a play gym earlier that week. A paediatrician confirmed that Evie had suffered a physical assault of no less than eight blows to the face causing bruises to her forehead, both cheeks and ears, her neck and her arm. Further injuries on Evie suggested that she had been roughly treated around the same time of the physical assault. The assault was more than a momentary loss of control and it demonstrated a gross breach of trust. I am told that one of the defence arguments was that there was no craniofacial damage.

I say in this house: why does it have to get to the point that there are broken or fractured bones before it is then considered by the court serious enough for incarceration? The perpetrator was sentenced to one year and nine months after sentencing discount, which was immediately suspended upon entering into a $500 good behaviour bond for a period of two years. So, effectively no sentence because it was suspended, $500 (some speeding fines cost you more than that) and a two-year good behaviour bond.

His Honour noted that the offending was far from the most serious of offending of this type. That is where I respectfully disagree with His Honour and so do thousands—tens of thousands, I would put to you—of South Australians. Any offence against a child, particularly an eight month old, an infant, is a very serious offence in my book and it is something that cannot be judicially considered to warrant serving no actual time behind bars. This horrendous offending should require an immediate sentence of imprisonment.

There was a significant community outcry regarding this sentence, and rightly so in my opinion. A child at such a young age is changing dramatically. They are learning social skills, their brains are developing at a rapid speed and learning safe attachment to their parents is paramount to good development later in life. To take this opportunity away from a child and injure them physically and possibly mentally and emotionally going forward is completely unacceptable.

I know that Evie is now living with her father and is very much loved and, having seen her today, she is doing exceptionally well, and for that I am most grateful, but that that does not take away from the need that we have to make it clear that domestic violence, and violence against children in any capacity, is not acceptable.

I am worried that this case has created a dangerous precedent for any parent who comes before the court on charges of assaulting their child. It would appear that the community also agrees with me. A change.org petition calling for a retrial of the perpetrator, Evie's mother, has reached 50,000 signatures in four days. As of this morning, there were 223,989 signatures in support.

I have had a lot of contact with people who have suffered domestic violence over the years and there is no doubt that more needs to be done to ensure the perpetrators are effectively dealt with by the courts. The government has made strides in this area, I acknowledge, and we welcome the changes that they have introduced and are intending to introduce shortly; however, clearly much more needs to be done. This bill requires that perpetrators of domestic violence are made to realise that their actions are significant, unwarranted and, frankly, unacceptable to society by requiring a gaol term to be served.

We should not be seen to be lenient on perpetrators of domestic violence and while some may argue that a suspended sentence is still a gaol sentence, and a weighty one at that, allowing a person to walk free from court on a bond is not the message that I believe we want to send when it comes to domestic violence. We need a clear message. Obviously, we need prevention and all those as well, but when you get serious perpetrators and serious domestic crime and serious domestic violence we need a clear message that says that domestic violence will not be tolerated and you will pay a penalty for your actions.

I had a constituent contact me regarding this issue. Her daughter was a victim of DV for 19 years and, thankfully, has managed to escape alive; however, the damage has been done. The perpetrator threatened to kill the entire family, stole from her, beat her, manipulated the children and engaged in stalking. Her daughter remains severely traumatised and struggling to provide for her children. She has not been the same since these violent incidents. The constituent further writes:

The perpetrators of domestic violence need to be jailed for their crimes against their victims. The reason I agree to this is so that the families can seek the help they need and to rehabilitate. They cannot do this with the perpetrator out on home detention or on bail. They need to know that they can be safe wherever they live.

The same would be true of perpetrators who walk free of a gaol term. In the words of Emily Cartlidge herself:

As a society we cannot forgive everyone's first physical assault, first recorded threat on another human. It doesn't make sense. The seriousness of domestic violence has to be communicated clearly; we cannot create a culture that suggests we learn that assault is wrong through a three strike rule. The consequences of assault need to be severe enough that people feel enough fear to exercise good judgement, even if there is a situation you feel 'warrants' you putting your hands on someone. You need to be made an example of severe enough to prevent any other young man believing this type of assault is permissible or forgivable.

In conclusion, I thank colleagues for listening to this. I ask them to meet with Emily and Evie's father, if they so desire. I understand they will be in contact by email with them. I would love to see some multipartisanship on this because I know the lawyers and the courts do not like minimum mandatory sentencing. We have it for speeding, we have it for drink-driving, we have it for murder; we need to have it for serious domestic violence. I commend the bill to the house.

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

Sitting suspended from 18:06 to 19:47.