Bills

Criminal Law Consolidation (Assaults Causing Death) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 February 2016.)

The Hon. A.L. McLACHLAN (00:31): I rise to speak to the Criminal Law Consolidation (Assaults Causing Death) Amendment Bill. The bill was introduced by the Hon. Robert Brokenshire on 24 February 2016 and mirrors an earlier bill he tabled in the parliament back in 2014. Whilst the Liberal Party appreciates and acknowledges the motivations of the Hon. Robert Brokenshire in introducing this bill, we will not be supporting it. We will support the second reading, but we will not support the third.

The bill seeks to introduce a mandatory minimum sentence of eight years' imprisonment, and a maximum of 25 years, for any offender who commits an assault whilst intoxicated, which causes the death of a victim. The minimum sentence of imprisonment cannot be reduced or mitigated in any way whatsoever.

Experience in other jurisdictions has shown that introducing mandatory minimum sentences does not curtail the prevalence of the crimes it is aimed at. Further, it can also create difficulties in the justice system. For example, in New South Wales, legislation similar to this bill before the chamber was passed in 2014. It has had far-reaching unintended consequences, which in one case saw a 15-year-old boy charged with the accidental death of his younger brother.

Likewise, the Northern Territory introduced mandatory sentences for property offences back in 1997. However, after attracting national attention and criticism, including from the United Nations, these laws were repealed in 2001. Of particular note, there was actually an increase in property offences in the Northern Territory while those laws were in place. It is extremely important that we in South Australia learn from the experiences in other jurisdictions.

Furthermore, it is equally important to acknowledge that juvenile persons with mental illness or a cognitive impairment, and Indigenous members of our community, are often disproportionately impacted by mandatory sentencing. Indeed, Indigenous overrepresentation in our prison system is highest in Western Australia and the Northern Territory, where mandatory sentences have operated the longest.

This is one of the many reasons why the Law Council of Australia called for the abolition of mandatory sentencing, claiming its abolition would help close the gap in Indigenous overrepresentation in the prison system. Whilst these laws may seem like an attractive and simple solution to combating particular crimes, experience has shown that they are not the answer.

The Hon. M.C. PARNELL (00:33): The Greens will also be opposing this bill for precisely the reasons that the Hon. Andrew McLachlan outlined. In fact, it is consistent with the approach we took to an earlier bill this evening or, rather, last night. Minimum mandatory sentencing does not work. It is not something that the Greens ever support. We prefer judicial discretion, so that the sentencing judge can hear all the evidence, all the circumstances and make an appropriate decision, so we will not be supporting this bill tonight.

The Hon. J.A. DARLEY (00:34): I rise to indicate Advance SA's position on this bill. I understand this bill will see a minimum gaol sentence of eight years imposed against those who cause a death by making physical contact while intoxicated. The bill addresses what is colloquially known as a one-punch attack. The problem we as a community have with alcohol-fuelled violence is alarming. My office undertook research a few months ago and found that, in the last few years, more people have died as a result of being attacked by a person who is impaired by drugs or alcohol than soldiers who have died while serving our country at war. This is disturbing.

The fact that there is a cohort of people out there who think it is okay to attack someone once they have had a few drinks or otherwise is alarming, and I agree with the Hon. Robert Brokenshire that something needs to be done. However, I believe the focus should be on education and early intervention. The government has focused their efforts on this issue and there seems to have been a slight improvement. I hope it is something that will continue over summer when a higher number of people are out and about.

I do not think that mandatory sentencing is the answer. The courts need to have the discretion to impose sentences that they believe are appropriate. These are often complicated matters and applying a broad brush approach can itself lead to injustices. Whilst I acknowledge that there is a problem here, Advance SA believes that preventative measures through mentoring, education and early intervention programs for substance abuse would be much more effective than simply locking people up.

The Hon. R.L. BROKENSHIRE (00:36): In summing-up, I thank all honourable members for their contribution. As I said when I introduced this bill, it mirrors the New South Wales legislation. I will never forget and I am sure a lot of my colleagues and many people in Australia will never forget the coward punch death of a young lad who was simply walking through a shopping centre with two female friends. The late David Hookes, a magnificent South Australian and Australian, left a hotel and was pursued by a security guard. I am not aware of all the facts but effectively he was punched, knocked down, and he died, and that is tragic because he would still be commentating today on the Ashes test which starts tomorrow or Saturday.

An honourable member: Saturday.

The Hon. R.L. BROKENSHIRE: Saturday. This legislation only mirrors legislation brought in by a Liberal government in New South Wales. I have dealt with constituents who have been victims of a coward punch. Just to summarise, without going into all the details again, about this time of year heading toward Christmas, a gentleman came into town to support his wife at a fundraising function. He was doing nothing wrong. He was walking along North Terrace to get some money from an ATM so that he had money to contribute to the evening.

He was very badly provoked by some drunks who had, coincidently, left Adelaide Oval after watching cricket all day. The bottom line was he was severely injured and could have been a victim who died. Fortunately, he did not. But because the people who attacked him had a smart lawyer, and because the police were still putting their prosecution case together, and because the smart lawyer said, 'You're in trouble here, mate; plead guilty and we will get you off with a minor sentence,' by Monday he was in court, he pleaded guilty and got off. Fortunately, that father and husband is, as I said, here today but he may not have been. I do not get a chance to watch the TV news that often at night but, when I do, there are not many weeks when I do not see that a coward punch has caused a death somewhere in Australia. In fact, I think there was another one just in the last few weeks.

The Australian Conservatives will continue to pursue this. We never will agree that the courts get it right all the time. We agree that they are learned and experienced people, but we do not want to leave it up to the courts all the time. Why? Because the voters of South Australia say to us that they are not happy with some of the court's decisions. As I said yesterday in the debate on domestic violence, using the examples of Emily and Evie, we need some minimum mandatory sentencing.

I have heard the current voice of the parliament, which is that they are not wanting to support minimum mandatory sentencing. However, there will be a change in the make-up of the parliament after 17 March 2018. We give notice to this parliament and the next parliament that the Australian Conservatives are going to, with more vigour than ever before, push for minimum mandatory sentencing on certain serious offences.

I particularly highlight paedophilia, rape, domestic violence and coward punches, just to name four. We will see what happens. Whilst we have had a lot of tough talk about law and order by this government and whilst this government has very effectively stolen what was always one of the platforms of the Liberals, which was that the Liberals were tough on law and order, the reality is that we have seen a decrease in car theft not because of the Labor government being tough on law and order but because of improvements in technology making it harder to steal cars.

But when it comes to offences against a person, this government has seen an increase overall in offences. We have to do something to stop the so-called badge of honour of thugs high on drugs or alcohol, or for whatever reason they are doing it, running around attacking innocent people who are simply going about enjoying what they should, and that is the freedom of being able to go anywhere and everywhere with their friends and family in Adelaide and in South Australia.

I will not be putting this one to a vote on the second reading, but if I am re-elected—and I know Australian Conservatives' policy is exactly with me on this—I will certainly be pursuing minimum mandatory sentencing. The lawyers will still make lots of money because they will still be able to defend these perpetrators to stop them from getting seven or eight or nine years, but one thing is for sure: if they coward punch and kill people or if they commit serious prescribed domestic violence, neither the lawyers nor the courts, the jury or the judges will have any discretion on minimum mandatory two-year sentences or the like.

Finally, if you do your homework on what happened with the coward punch situation that a strong Liberal government brought in in New South Wales, there has now been a reduction there, I understand, because it is not a badge of honour to risk two years' imprisonment.

Second reading negatived.