Bills

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

Second Reading

Adjourned debate on second reading.

(Continued from 18 October 2017.)

The Hon. M.C. PARNELL (19:47): I wish to make a brief contribution on the second reading of this bill, which requires that a person who has been convicted of a serious domestic violence offence as an adult or a youth will be subjected to a mandatory sentence of imprisonment for at least two years, and this sentence cannot be suspended. The scourge of domestic violence is something that we have discussed many times in this place. It is also something that many of us have experienced as we gather out on the steps of parliament with red roses each time a person is killed at the hands of an intimate partner. We know that more now than one woman per week is killed.

I made a matter of interest speech earlier today, talking about the White Ribbon breakfast, the White Ribbon march and the fact that the Victorian parliament has just been declared the White Ribbon workplace, the first parliament to be declared a White Ribbon workplace in the world. In that matter of interest contribution, I said that I would be seeking to get a coalition, hopefully of men, together next year in the next parliament to push for the same status for the South Australian parliament.

Later on tonight, I have a bill coming to a vote, which also deals with domestic violence. It deals with the unfortunate situation of women, mainly, who are driven by abuse to kill their abusive partners and how the law should deal with that. The issue of domestic violence and family violence is never far from our minds. I say that to put on the record that the Greens absolutely support measures, whether they be legal or social measures or community campaigns, that help protect women from violence.

However, the honourable member's bill approaches it from a different perspective, and it is something that the Greens have difficulty with. It is not that people who commit serious domestic violence offences should not be punished—of course they should and they should be punished severely. But our position in relation to the criminal law has always been to allow judges to exercise a discretion, having heard all of the circumstances, and to impose an appropriate penalty. We have opposed every mandatory minimum sentencing bill that has been presented to parliament on that simple ground—that we do not believe it is appropriate for the parliament to be setting mandatory minimum sentences because that takes away from the judicial discretion that we believe is the most appropriate response.

We acknowledge the Hon. Rob Brokenshire for putting this important issue on the agenda. We do not resile for one moment in relation to the task that is ahead of us as a society to deal with domestic violence, we just do not think that this bill is the right way to proceed, but I look forward to working with the honourable member, if he is re-elected, to come up with a range of other measures that might advance the safety of women in our community.

The Hon. A.L. McLACHLAN (19:51): I rise to speak to the Criminal Law (Sentencing) (Mandatory Imprisonment for Serious Domestic Violence Offenders) Amendment Bill. As the Hon. Mr Parnell has advised the chamber, the bill was introduced into this chamber by the Hon. Robert Brokenshire in late October, and we acknowledge his work in this area. He has tabled a bill following certain cases involving serious domestic violence that have recently been considered in the South Australian courts. I will not traverse the details of those cases, given they were explained in detail by the Hon. Robert Brokenshire in his second reading explanation.

These cases serve as an important reminder of the prevalence of domestic violence in our community. I would like to place on the record my appreciation to those involved in those cases who have written to my office seeking support for the bill before the chamber. I acknowledge the trauma and suffering the victims continue to endure long after the physical scars have healed.

The bill seeks to amend the Criminal Law (Sentencing) Act 1988. It seeks to ensure that any person, whether a youth or an adult, who is convicted of a serious domestic violence offence, must be sentenced to at least two years' imprisonment, which cannot be suspended. This will capture close personal relationships, for example, a spouse or former spouse, domestic partners or former domestic partners, a child or a stepchild, grandchildren or close family members. My understanding is that the types of offences that will be captured will include assault, rape and other sexual offences, and causing physical or mental harm.

The bill has also been drafted to capture youth offenders, subjecting them to the same two-year mandatory minimum imprisonment in the youth training centre if found guilty of a serious domestic violence offence. I note there are some similarities in the proposed amendments to the current provisions concerning the mandatory imprisonment of a serious firearm offender in the Criminal Law (Sentencing) Act; however, there is an important distinction in that those extant provisions do not prescribe a length of sentence that must be imposed.

While the bill is well-intentioned, the Liberal Party is wary of proposals that seek to prescribe mandatory minimum sentences. This is especially so given fairly recent experiences in other jurisdictions that have shown that they are not effective in reducing the instances of the offence they target. The Liberal Party is also concerned this bill captures youth offenders, potentially detaining them for a minimum of two years, regardless of their age, immaturity, mental health issues or the need for rehabilitation.

In closing, whilst the Liberal Party is extremely sympathetic to the intent of this bill, we are not convinced that the measures contained in it will reduce the prevalence of family violence in our community. We are also wary of mandatory minimum sentences having unintended consequences by removing the ability of the courts to deal with the particular facts and circumstances of each individual case it hears. As I said, the Liberal Party is very sympathetic to the intent of this bill, but does not feel at this time that it can support the same.

The Hon. J.E. HANSON (19:54): I think that the Hon. Mr Parnell and the Hon. Mr McLachlan have successfully traversed the issues surrounding why we might have this bill before us tonight. In regard to what they have said, the government concurs. There is no doubt that domestic violence has no place in South Australian households or, for that matter, anywhere else. The genuine intent of this bill is something which seeks to address those issues; however, mandatory minimum sentencing for this is not the answer. I think the reasons were coherently debated over there and I am not going to go through them again; I think they are good points.

Maximum penalties are a legitimate matter for the parliament to determine; however, the particular sentence that you set and the bounds within which you are going to operate are something for a trial judge to determine, and they are subject to appeal and so on. On that basis, the government is opposing the bill. I concur with what was put by the Hon. Mr Parnell: this is something that we do need to work on as a society, of that there is no doubt, but I think this bill goes around it the wrong way.

The Hon. J.A. DARLEY (19:56): I rise to indicate Advance SA's position on the bill. I understand the intent of this bill is to ensure that individuals who commit a serious domestic or family violence offence will face a mandatory term of imprisonment. I have a lot of sympathy for the intent behind the bill. I, like many others, have received emails from constituents who have shared stories of their experiences with the criminal justice system. On the face of it, it seems that there were certainly some anomalies with the outcome when compared to community expectations. However, in this instance I cannot support mandatory sentencing.

The courts need to have discretion to impose sentences that they believe are appropriate. These are often complicated matters, and applying a broadbrush approach can itself lead to injustices. As I said before, I have the utmost sympathy for those who have contacted me and those in similar positions. I am very sorry to hear these stories; however, I cannot support the bill.

The Hon. J.S.L. DAWKINS (19:57): I was not listed, but I did want to respond, firstly to endorse the comments made on behalf of the Liberal Party by the Hon. Mr McLachlan and, secondly, to respond to the comments made by the Hon. Mr Parnell. The Hon. Mr Parnell, the Hon. Mr Darley, the Hon. Mr Gazzola, the Hon. Mr Hunter and others, including myself, have been members of White Ribbon for a very long time. I think we support greatly their efforts, particularly of the voluntary committees that run the march, the breakfast and the events that some of us have sponsored for White Ribbon Ambassadors in this parliament.

The issue of the parliament becoming a White Ribbon workplace is something that is worth considering. The issue has been raised to the JPSC in the past by the member for Stuart in another place, and would obviously need an appropriation from the government of the day to assist the parliament and its various divisions to work together on that. It is not a measure that could just be done by the snap of the fingers, but I think it is something worth strong consideration.

Personally, I am very happy to work with the Hon. Mr Parnell in the next parliament to see how that could be brought together, and work with the Clerks and heads of division in this whole building to see whether that could be done. It is quite clear that the government of the day would have to provide an additional amount of money, as has been done for government departments to allow that to happen.

I do give the Hon. Mr Brokenshire great credit for raising the issue. I support the position of my party, but I also perhaps suggest that he continues to work with White Ribbon Ambassadors. He could consider being nominated as an ambassador if he wishes in the future to ensure that we take the message out into the community, not only as ambassadors but as advocates and supporters of the White Ribbon movement. With those words, I commend the position of my party and of others, and I acknowledge the best interests that the member has brought to us this evening.

The Hon. R.L. BROKENSHIRE (20:00): I thank all honourable members for their contributions. Before I get into the overall response, on the White Ribbon Ambassadors, I place on the public record that, if I am re-elected, I will have to think very carefully before I would support a motion on White Ribbon Ambassadors because they are partly funded by the state government and partly funded by the federal government.

I was one of those who became a White Ribbon Ambassador early on, and I have actually written to them saying that I no longer want to be a White Ribbon Ambassador, particularly because I think they are, to an extent at least—and I watch and observe—losing their way on what they were set up for. They contacted me because they knew that I had a position on abortion and they have become involved in the debate on abortion.

The Hon. J.S.L. Dawkins: That is the federal secretariat; that is not the state people.

The Hon. R.L. BROKENSHIRE: No; well, we will have a look and debate the whole thing, but if there is an affiliation, alliance or any integration then I am simply saying that I will have to think carefully about it because I do not support late-term abortion; I never have and I never will. I put that on the public record and, if I am re-elected, we will look at that in context in a calm, cool and collected way at the appropriate time.

I want to come back now to the issue that I have here, which is one tool in the toolbox, as I said on the ABC yesterday, regarding what is an incredibly serious situation. Later on tonight we will talk about coward punches. I guess that the major parties—and I do not want to pre-empt it—might bring up the debate again about the parliament and the relationship between the parliament and legislation and then the separation of powers through to the courts.

I spend a lot of time, as I think most members do, outside of here where I talk to what I call voter land. Over the 22 years that I have had the privilege to be in this house representing and being subservient in all respects to the voters of this state, they have said to me that they feel that the courts are getting more and more out of touch.

In particular, defence lawyers are paid to defend perpetrators, even when prima facie there is enough evidence to bring them before the court. Under our system, which is a good system by and large, they do not just go to court for the sake of going to court. There is a lot of work done in policing, prosecution, the Solicitor-General's office and so on before a person is taken before the court, so prima facie there is a case to answer.

What is the role of the parliament and what is the role of the judiciary? The role of the parliament is to set the parameters in which the judiciary then deliberate to assess individual cases. I accept and acknowledge that every case is an individual case and should be looked at based on the evidence put in that case by both the defending lawyers and the prosecutors.

I go back to the days from 1998 through to 2002 or whatever it was when I was fortunate enough to have the police portfolio responsibilities, and domestic violence was a problem then. Domestic violence has been a problem probably since the creation of society, frankly. I will talk about the Indigenous situation as well in a moment because there is a conference going on at the moment. We have a situation where Mr Rigney has raised certain points in the media on that issue only today.

I was a little offended by the Deputy Leader of the Opposition, Vickie Chapman, yesterday when I was on radio. I accepted that I was going to cop a fair bit of pressure because it was myself and, on the other side, the Law Society, who always believe that they should have absolute rights, with their very clever academic skills going through law school and all the experience that I do not have as a farmer. But I do have 22 years as a legislator and a member of parliament representing people. It is not a short amount of time, so you actually learn quite a lot there, too.

I expected the Law Society to say that they did not support minimum mandatory sentencing. I was surprised that, on behalf of the Liberal Party, Vickie Chapman said that the problem is minimum mandatory sentencing and then she proceeded to attack the government on all the other things. She recognised what I was trying to do—I give her credit for that—but I did not get the support. I thought that this is not absolutely focused on the principle of whether or not there should be minimum mandatory sentencing. The focus of this, to me, are the victims.

Back when I was a privileged minister in a Liberal government, we set up a ministerial, department and NGO working group that reported back to cabinet on what we were going to do about domestic violence, to do whatever we could to prevent it. I strongly supported that. I sat in all those meetings. I do not think that I ever missed a meeting, to be frank, because it is an issue that is very dear to me. I do not condone any violence whatsoever.

My father, who was a very capable unarmed combat man and also a very capable featherweight boxer in the defence forces who could protect himself physically in any way, always said to me since I was a very young person, 'You don't protect yourself with physical applications, and you don't apply physical applications to people. You don't hit your sister. You don't get involved in any physical stuff. You work through problems with your brain.' I was taught that as a young person. If we could indoctrinate that into society so that we could talk about things like we are here now, then we might have a lot of improvement.

My point is that the member for Bragg, the Deputy Leader of the Opposition, after condemning the government on what they are not doing, said that we have to do more on prevention and all these things. I totally agree with that but, at some point in time, when all else fails for whatever reason—resources are an issue and education is an issue. Hopefully, in 10 or 20 years' time, I can sit in my rocking chair and see a better society because young people have realised that you do not go about life by being a perpetrator: you go about life by caring for people and by talking through and working out problems.

At the moment, I believe that we have a situation where the courts are often inadequate, irrespective of what may be argued on the other side, when it comes to handing out sentences where some justice is given to the victim and also an incredibly important message is sent to the perpetrators that we are not going to tolerate that. I personally believe that, in many instances, the courts have let the victims down. That is the reason why I have brought in this bill.

Yes, let us put more money into prevention, early intervention, rehabilitation and counselling so that if there is a couple living together and things are getting a bit rocky, so to speak, they can quickly and easily access support to work through the problem rather than having it get to the other end. But the reality in life is that, whichever way you look at it, in some circumstances with domestic violence, it does get to the other end. That is the treacherous, tragic and scary end, and anybody in this house who has worked with constituents who have been the victims would have seen that firsthand. I am sure that many have.

I have in recent times worked with a lady, Emily Cartlidge, and I have huge respect for Emily, her mum, her dad and also her sister, Rebecca Warren, who does not live in this state anymore, but who has actually had a detailed discussion with me. They contacted me asking, 'Do you realise what happens in a circumstance of premeditated domestic violence?' That to me is very serious because that person has planned a situation. I admire, respect and encourage Emily and her family to continue to champion through to the point where we do get a more comprehensive situation of instruction to the courts on what the minimum requirement is that we believe should occur in a situation where there is serious domestic violence—and it is all listed, as you know.

Then there is Evie, a beautiful, now healthy, thank God, young girl who was very badly beaten by her mother as a baby—an innocent, beautiful infant badly beaten. One of the arguments the defending lawyers put was that the mother had had a tough life. No surprise about that, because tens of thousands of people have tough lives and tough upbringings, but also many of those tens of thousands of people actually end up in a situation where they become model citizens. They become leading citizens and they learn from that, so I do not see that as a defence.

The mother might have had a tough upbringing but, notwithstanding that, that is no reason to beat a baby. Part of the defence lawyer's argument was that there was no craniofacial damage. What that actually means in layperson's terms is that the baby had no fractures or broken bones. What are the courts looking at here? You can beat a baby—according to that—but as long as you do not fracture or break a bone, well, it is not that bad?

If you had a look at Evie's bruises and if you had a look at Emily's situation, they were horrendous. There are lots of other examples of this, but on both occasions these people got off with suspended sentences and fines less than speed dangerous. I shake my head about that. I am not saying for one moment that it is the only tool in the toolbox. What I am saying is that one of the policies, which I think is still a Liberal policy, is sentencing guidelines. Sentencing guidelines is pretty soft. I do not think the government has even got that.

I will watch with interest when the law and order policy comes out as to what the Liberal Party and the government finally come up with. The reality is that why sentencing guidelines was a compromise in the Liberal Party is because there were some who wanted minimum mandatory sentencing and there were some, like my colleague the Hon. Justin Hanson, on behalf of the government, who said, 'No, leave it all to the courts.' I do not think that the role of this parliament is to leave it all to the courts.

I do not profess to be a gifted academic with a high IQ, who is a judge of the Supreme Court or anything like that at all. I am not. I am a farmer and a politician. I understand that this parliament is about making legislation that shows what the people of this state want to see administered and adhered to for the people. I do not trust or believe in giving absolute discretion to the courts. Whether it is a Liberal or a Labor government does not matter, the courts have let down the government, the parliament and the people of this state on lots of occasions.

Where it is identified and it is actually prescribed that there are certain serious domestic violence offences, all we are simply saying with this piece of legislation is a two-year minimum. Are you guilty or not guilty of the prescribed serious offence? If the answer is yes, it makes it easier for the judge and/or the jury. They go in for two years and they sit in there 24/7—not a nice place to be—and they think about their actions.

On top of that, they then get the proper anger management courses and all those things that are not there now. In fact, there has been a reduction of all that in the past 10 years, rather than an increase. But you bring all that in as another tool as well as a comprehensive list of tools, and those people hopefully then learn their lesson. The media report on that and we have a situation then where people think, 'I am not going to do premeditated domestic violence. I have a problem. I am not happy with my partner. Things are shaky. I am going to seek help.' That is what we want. We need to send that message. But where an innocent person is put into the most high-risk situation that could ever occur, they need some protection, and if they do not then get that protection by virtue of everything else we have done, in my opinion, that perpetrator needs to be gaoled.

I will finish with a couple of things. Yesterday we had a bill that I do not like. It flies in the face of what this government has said they are going to do when it comes to reducing red tape. It is called the labour hire bill. That is one of the most intense pieces of red tape for business that I have seen in my living memory, and that is going to make life pretty difficult for people that engage in labour hire.

My argument is that in that they had that you could sentence an employer for bad behaviour, not even necessarily criminal activity but bad behaviour for up to five years, two years more than even a situation with a mirror bill in Queensland which was three. The point there is that we are happy to have the government bring in legislation to gaol an employer. Fine them by all means, rehabilitate them, delicense them or whatever, but to gaol them? But then on the other hand right now, when we have a situation where there is incredible disgusting, disgraceful, life-threatening domestic violence—and I am not being alarmist—we have to leave the whole thing to the courts. I am sorry but I, for one, do not agree with that.

I want to let you know these two things. I want to congratulate and put on the record the words of an Aboriginal gentleman called Mr Craig Rigney who is the CEO of Kornar Winmil Yunti. He is working with Aboriginal men in family violence and he has a conference happening at the moment in 2017, right now I believe. He said some pretty serious things. When a very good presenter, Deb Tribe, from the ABC talked about this particular piece of legislation, Mr Craig Rigney said that the majority of perpetrators—and I am not singling out the Aboriginals. I work to my best ability to support them.

Aboriginal, non-Aboriginal, wherever you come from, the reality is there are a lot of situations where there is domestic violence. I am paraphrasing a very long nine-minute interview with him, so forgive me for paraphrasing but I would rather do that than go through it all because of all the work we have to do tonight. To paraphrase it and summarise it, he said that the majority of perpetrators in the Aboriginal community have been victims of violent experiences. That must be dealt with using cultural mechanisms to change behaviour.

But he also points out that each man—and woman for that matter, but obviously sadly most domestic violence is by men—is responsible for their use of violence and there is no excuse. He has talked to these people and he says that many of these people will use excuses. They will say, 'But this happened to me. This is why I am violent.' Well, no, says Mr Craig Rigney. You chose to be violent and that is a yes or no decision. All of these other aspects in your life are maybe what are creating a stress factor for you and that cup can only hold so much water, so let's work on a way that we can start to unpack some of that stuff while we are discussing the violence, while we are holding those men accountable for their attitudes and beliefs towards women. That is from Mr Craig Rigney and I congratulate him on his stance and his strength, frankly.

I just want to put on the public record for today, 29 November 2017 at 4.43pm when my office looked at the petitions that are being signed between Emily Cartlidge and Shane McMahon, the combined total of the signatures now is 225,925 people. They are the people who elect us and they are saying we need to be more comprehensive with what happens with domestic violence and that one of the tools in that toolbox should be minimum mandatory sentencing.

Whether I have been a member of the Liberal Party or a member of Australian Conservatives, I have always believed that the parliament should be doing more when it comes to minimum mandatory sentencing. I do not have confidence in the courts. I do not have confidence in all lawyers that they are going to push hard in a plaintiff situation for the best possible outcome, nor indeed when the defending lawyer comes in and uses all these excuses because they are paid to minimise the sentence or, indeed, get them off. I have been here long enough to see that that is not working. I will not apologise for pushing for more minimum mandatory sentencing.

I have heard the voices, so I will not divide. I thank my colleagues for their input. I know that most of us in the world condemn domestic violence, and I have heard good support from the Hon. Mark Parnell on behalf of the Greens. I have heard good support from both the Hon. Andrew McLachlan and the Hon. John Dawkins on how they condemn domestic violence on behalf of their party and as individuals. I have heard good support from the Hon. Justin Hanson on the principle of condemning domestic violence on behalf of the Labor Party government, and I have heard good support on this from my colleague the Hon. John Darley on behalf of his new party. I thank you all for that.

As I say, I will not divide now, but if I am re-elected, then governments are going to come to us and say, 'We have mandates to do things and they want us to support them.' If I am re-elected, and in the lead-up to this election, I will be raising this issue as much as I possibly can. I put on the public record that if I am re-elected with the Australian Conservatives, we will be also saying to the government of the day, we want a much more comprehensive domestic violence strategy and we want to have minimum mandatory sentencing. Two years for a violent perpetrator will be enough time, in most circumstances, with the proper education programs and rehabilitation in the prisons to actually prevent further domestic violence of a serious nature.

I thank members for their contribution. I accept that tonight I am the only one here on the side of minimum mandatory sentencing, but I also look forward to pushing this again if I am successful at the upcoming election. I also reserve my right to look at more minimum mandatory sentencing because to conclude, if you have a look at the irony of this, you have minimum mandatory sentencing for murder, which I agree with, you have minimum mandatory sentencing for driving over .05, you have minimum mandatory sentencing for traffic offences, but when it comes to violent, serious perpetrators of domestic violence, we have to leave it to the courts.

While I am still in here and if I am back in here, I do not want to leave that to the courts. They will have discretion as to whether it is two years and three months or seven years or 10 years or whatever, and that is where their intellect, way above mine, comes into being, but they will not have sentencing guidelines, which is a nothing. They will be told that if you are on that list and you have put that person's life at risk physically and mentally, and you have then made that life so difficult to that person—mostly women, but sometimes men—that they have to be strong enough to build out of that without the support of the justice system that says, 'You perpetrated. You committed a list of very serious domestic violence,' you are going to gaol. I want them in gaol and I will not give up. I thank my colleagues for listening.

Second reading negatived.