Bills

Sentencing (Release on Licence) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (16:33): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Mr President, I introduce this Bill which amends the Sentencing Act 2017, to strengthen the provisions relating to the release of convicted sex offenders who are incapable of controlling, or who are unwilling to control, their sexual instincts.

Members will appreciate that amendments have been required as a result of the application for release on licence, granted by the Supreme Court on 27 March this year. The DPP appealed that decision and the matter was heard on Wednesday 23 May. No decision has been delivered as yet, but the Government needs to be–and is—prepared for the consequences of an unsuccessful appeal.

At the outset, let me be very clear about the approach of this Government when it comes to dealing with these types of issues. We will ensure that the community is protected. We will ensure that convicted sex offenders who are unable or unwilling of controlling their sexual instincts do not pose a risk to the community. We will ensure that sensible, thoughtful legislative solutions are introduced into the House.

The Attorney-General has advised that on 27 March the Leader of the Opposition wrote to the Attorney-General about the Humphry's matter and the Attorney-General replied by letter the next day. The Attorney-General advised the Leader of the Opposition that I would be happy to work with him or other local Members in relation to this matter.

Then, on 21 May, a briefing was provided to the Shadow Minister.

We heard nothing from the Labor Party about this matter until the story was released to the media this week. The former Labor Government had 16 years to get its legislation right – and they failed!

South Australians will see through the late and sudden interest in changing the law to protect the community.

Mr President, the amendments proposed in this Bill will ensure that those who have been, and will be, granted an order for indefinite detention to be released on licence into our communities, or to have their detention order discharged, will have to reassure the Court and relevant experts that they are suitable to be released.

The Bill will contribute to the increased safety of the public and provide victims and the community at large with greater security and freedoms by minimising the risk of a sexual offender being released into the community and then re-offending.

Section 57 of the existing Sentencing Act enables the Supreme Court to make an order that a person who has been convicted of a 'relevant offence' is to be detained in custody until a further order is made. A relevant offence is defined by reference to a number of offences of a sexual nature.

Before making such an order the Court must consider the reports of at least two legally qualified medical practitioners concerning the mental condition of the person and whether they are incapable of controlling or unwilling to control their sexual instincts.

A person is regarded as unwilling to control their sexual instincts if 'there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts'.

In some cases this may not be an immediate risk, however we must be vigilant to those who will bide their time and potentially risk society in the future.

The paramount consideration of the Court when determining to make an order under s 57 must be the safety of the community. The Court must then take other relevant factors into consideration including:

the reports of the medical practitioners;

any relevant evidence or representations that the person may wish to put to the Court;

any other report ordered by the Court;

any other matter the Court thinks relevant.

After an order for indefinite detention is made pursuant to s 57, the detained person (or the Director of Public Prosecutions) may apply to the Court to discharge the detention order (s 58) or to be released from custody on licence (s 59).

Under the existing provisions within the Sentencing Act, in determining to release an offender subject to an order of indefinite detention on licence, the paramount consideration of the Court must be the safety of the community. The Court must also then take the following factors into account:

the reports of at least 2 qualified medical practitioners as to whether the person is incapable of controlling or unwilling to control his or her sexual instincts

any relevant evidence or representations that the person may desire to put to the Court;

any other report ordered by the Court;

evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;

reports resulting from the periodic reviews on the progress of the person while detained (conducted by the Parole Board); and

a report of the Parole Board identifying the Board's opinion on the effect the release on licence would have on the safety of the community, reporting on the probable circumstances of the person if released on licence, and the recommendation of the Board as to whether the person should be released on licence.

any other matter the Court thinks relevant.

In the past, the Court has expressed the view that despite the risk an offender might pose to the safety of the community, it was appropriate to release the offender into the community on licence as the community could be adequately protected through a number of steps to be taken by the Department of Correctional Services and other agencies to manage those risks.

Mr President, this Bill amends the Sentencing Act to address concerns that have been raised about this approach.

The reforms create a two-step process.

Firstly, a detained person will need to satisfy the Court that they are both capable of and willing to control their sexual instincts.

If the Court is so satisfied, the Court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision. This means that if the person cannot satisfy the Court that they are both capable and willing to control their sexual instincts, then the Court is unable to make an order to release the person on licence or to discharge their order of detention subject to one exception.

If the Court is satisfied that the person no longer presents an appreciable risk to the safety of the community due to their advanced age or infirmity, the Court can then consider whether they should be released on licence or have their indefinite detention order discharged, with the paramount consideration being the safety of the community in making that decision.

As reassurance to the community, these amendments will apply to anyone currently detained whose application for release on licence or discharge of licence is yet to be made, or has been made, but is not yet finalised.

Significantly, the amendments will also allow for the Director of Public Prosecutions (the DPP) to apply to the Supreme Court to either cancel or confirm the release on licence of a person who the Supreme Court has authorised to be released on licence.

If such an application was made by the DPP, the person subject to the licence would need to satisfy the Supreme Court that they are capable of controlling, and willing to control, their sexual instincts or that they no longer present an appreciable risk to the safety of the community due to their advanced age or infirmity.

If the Court is so satisfied, the Court can then consider whether they should confirm the release on licence, with the paramount consideration being the safety of the community in making that decision.

If the court is not so satisfied, then the person's release on licence would be cancelled.

The person would then be detained, and be at liberty to apply at a later date, under these new provisions, for release on licence or discharge of their detention order.

At present, where a person has been subject to licence conditions for a continuous period of three years, unless the DPP applies to the Supreme Court to order otherwise, there will be an automatic discharge of the detention order (pursuant to s 59 (19) of the Sentencing Act).

The Bill also removes this automatic discharge of a detention order. There is no reason to assume that just because a person has not breached a licence condition for three years that they suddenly pose no, or no significant risk, to the community at the three year mark. This is particularly so in cases where there has been very close supervision and conditions that would virtually prohibit a breach during the term of the licence.

Mr President, when considering the Bill it must be noted that if an applicant were able to satisfy the test of being willing and capable of controlling their sexual instincts, one would assume they would be likely to always apply for a discharge of the order altogether, rather than release on licence.

If such application were granted, the detainee would be released into the community without any preparation or supervision at all. To address the risk this may pose, a further amendment has been included to provide that, in these circumstances, the Court may order that the discharge is not to take effect for such time as it considers necessary for the purpose of enabling the person to undergo a suitable pre-release program. This is reflected in the proposed new section 58 (6) of the Sentencing Act.

Mr President, this is an important Bill and one that has had some of the best legal minds in the Attorney-General's department consider it. I am confident that the Bill will ensure that the community is kept safe from offenders who are incapable or unwilling of controlling their sexual urges.

I commend the Bill to Members and I table a copy of the Explanation of Clauses.

EXPLANATION OF CLAUSES

Part 1—Preliminary

1—Short title

2—Amendment provisions

These clauses are formal

Part 2—Amendment of Sentencing Act 2017

3—Amendment of section 58—Discharge of detention order under section 57

This clause amends section 58 to provide that an order for detention under section 57 cannot be discharged unless the person subject to the order satisfies the Supreme Court that the person is both capable and willing to control the person's sexual instincts or the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or infirmity.

The section is also amended to provide that the Supreme Court may order that the discharge of an order for detention may come into effect at such time (after the making of the discharge order) as the Court considers necessary to enable the person subject to the order to undergo a suitable pre-release program.

4—Amendment of section 59—Release on licence

This clause amends section 59 to provide that a person detained in custody under Division 5 of Part 3 of the Sentencing Act 2017 cannot be released on licence unless the person satisfies the Supreme Court that the person is both capable and willing to control the person's sexual instincts or the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or infirmity.

This clause also repeals subsection (19) of section 59. Currently, subsection (19) provides that if a person has been subject to a licence under section 59 for a continuous period of 3 years, the order for the person's detention under Division 5 will, unless the Supreme Court, on application by the DPP, orders otherwise, be taken to have been discharged on the expiration of that period.

5—Amendment of section 61—Court may obtain reports

6—Amendment of section 62—Inquiries by medical practitioners

7—Amendment of section 63—Parties

8—Amendment of section 64—Service on guardian

These amendments are consequential on the insertion of Schedule 2 into the Sentencing Act 2017.

9—Amendment of section 65—Appeals

This amendment is consequential on the repeal of section 59(19).

10—Amendment of Schedule 1—Repeal and transitional provisions

Transitional provisions are inserted into Schedule 1 of the Sentencing Act 2017 for the purposes of the measure.

11—Insertion of Schedule 2

This clause inserts Schedule 2 into the Sentencing Act 2017:

Schedule 2—Re-consideration of authorisations to release on licence under section 24 of repealed Act or section 59 of this Act

Schedule 2 provides for a scheme by which the Supreme Court may, on application by the Director of Public Prosecutions, cancel or confirm the release on licence of a person to whom clause 1 of the Schedule applies (being a person subject to an order for detention who, before the commencement of the clause, has been authorised by the Supreme Court to be released on licence).

The Schedule provides that the release on licence of a person to whom clause 1 of the Schedule applies must not be confirmed unless the person satisfies the Supreme Court that the person is both capable and willing to control the person's sexual instincts or the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or infirmity.

Debate adjourned on motion of Hon. I.K. Hunter.