Sentencing (Release on Licence) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 6 June 2018.)

The Hon. F. PANGALLO (15:36): I rise to speak in support of the Sentencing (Release on Licence) Amendment Bill 2018. The bill amends the Sentencing Act 2017, strengthening the provisions relating to the release of convicted sex offenders to further tighten conditions of release on licence or discharge of detention for an offender who has been declared unwilling or unable to control their sexual instincts and who is being detained indefinitely.

No-one in our society is more despised and vilified than child sex offenders. The insidious and devastating harm they can cause innocent children cannot be overstated. We saw evidence of that in the Mullighan inquiry into children abused in state care. We need policies and consequent legislation that keep those who might harm children away from them. To do otherwise would be negligent. This bill aims to do just that.

As has been widely reported, this bill has been prompted by the potential release of notorious paedophile Colin Humphrys, an evil predator with an horrific and lengthy history of sexual offending across five Australian states spanning three decades. He was gaoled in 1992 for offences against a child who was kidnapped by another notorious paedophile from Adelaide and delivered to Humphrys in New South Wales, where the young boy was systematically abused over two years. Humphrys was already a repeat child offender by this stage.

The victim of this offence, just nine years old at the time, is known by the court-imposed pseudonym of XX. In April this year, XX bravely spoke out against Humphrys' imminent release from prison, which was the subject of an appeal by the DPP in the Full Court of the Supreme Court last month. That decision is pending, necessitating the urgency of this bill.

XX spent his 11^th birthday in a psychiatric ward because of the pain, torment and abuse Humphrys inflicted on that little boy. Twenty-seven years later, XX said the experience had forever shattered his faith in the legal system. XX and other victims have the right to be heard. It is something the Commissioner for Victims' Rights has campaigned for over a very long time. His words are powerful and compelling. XX has said:

I think, if I had been abused by men who had never abused children before, my rehabilitation would have been easier.

We can all rationalise a bit of bad luck, but our system was designed to see me abused.

XX went further to say, the law 'placed no weight on the damage' done by sex offenders, focusing only on their needs. I quote XX again:

Ours is a system that ensures that more children will be harmed. That's the system we are living with…it's set up to empower paedophiles to reoffend.

That must end now. Humphrys' imprisonment for offences against XX did not stop him. In 2009, after more reoffending, this monster of a human being was imprisoned indefinitely because he was unwilling to or incapable of controlling his sexual instincts. This time Humphrys committed child sex offences against a 14-year-old boy within 30 minutes of meeting that boy. The offending continued for the next three years.

In December 2013, Humphrys applied for release on licence pursuant to the then section 24 of the Criminal Law (Sentencing) Act 1988. That application was withdrawn by Colin Humphrys after unfavourable medical and parole reports. In July 2015, Humphrys made a second application for release on licence. Despite the Parole Board remaining unsupportive of his release, backed by medical reports that were unable to conclude that he was willing or able to control his sexual instincts, Justice Kelly ordered his release on licence in March 2018. To quote XX again:

To give this man, this 66-year-old man with a criminal history spanning 30 years of persistent, recidivist behaviour, one more chance? I felt hot rage.

The decision to release this persistent, pernicious paedophile filled me with hot rage, too, and it is why I am supporting this bill.

Regrettably, Humphrys is not an anomaly. An article in Tuesday's Advertiser reported that Stephen Sullivan, a high-risk sex offender who targets teenage girls, was taken back into custody after breaching four of his supervised release conditions in just five days. He barely lasted five days back in the community. Upon being released, Sullivan cut off his GPS tracker, got drunk, played the pokies and invited a woman with teenage daughters to his home.

In his judgement, Supreme Court Justice Martin Hinton said Sullivan continued to pose a 'very high risk' to girls. Justice Hinton noted that, in all his years of contact with the justice system, '[Sullivan] has not successfully completed a program for sex offender treatment.' The provisions in this bill will capture paedophiles like Sullivan, too.

The government's bill outlines that, if a person who has been indefinitely detained makes application for discharge of their detention order or to be released on licence, they must first be able to demonstrate that they are willing and able to control their sexual instincts or that they are so aged or infirm that they no longer pose a risk to the public. For those whose applications for discharge are successful, the Supreme Court is able to order that the person not be released until they have undertaken a pre-release program.

The bill will be retrospective in that it will apply to those who have already made an application but have not yet received a decision. The bill will allow the DPP to recall any individuals who have been released on licence if they believe they should be reassessed using the new higher threshold. The bill would also see those who have been released on licence no longer automatically discharged after three years. Instead, the licence conditions will be extended until there is an application for discharge.

The opposition has filed amendments that would see that applications can only be granted if they have the concurrence of the Parole Board which would, in effect, elevate the role of the Parole Board above that of the court. This may well create constitutional issues, and we are still working through the practical effect of these amendments.

The government has filed further amendments that seek to strengthen its original bill with the inclusion of the word 'permanent' before 'infirmity', ensuring that, if a person who has been indefinitely detained makes application for discharge of their detention order or to be released on licence, they must first be able to demonstrate that they are willing and able to control their sexual instincts or that they are so aged or permanently infirm that they no longer pose a risk to the public.

This is designed to capture paedophiles like Rick Marshall, a former children's entertainer whose health remarkably improved away from his court appearances. When I was working with Today Tonight in 2009, we broadcast a story of this child abuser, previously a TV personality. You may recall images of Mr Marshall, seemingly incapacitated, being wheeled into court on an ambulance gurney.

In 2006, he was charged with eight child sex offences. His acting skills were put to good use, with a Logie-winning performance of a man with Parkinson's disease and dementia. This was later exposed to be a lie when he was filmed by Today Tonight frolicking in his front yard. This bill needs to stop people like Marshall doing Lazarus impersonations to get out of long terms of incarceration. SA-Best reserves its position on these amendments until the committee stage of the bill.

The Hon. D.G.E. HOOD (15:46): I rise to make some comments on what I consider to be a crucial bill that warrants passage through this place as a matter of urgency, and that is to amend the current Sentencing Act, of course. I know that most, if not all, honourable members in this and the other place would agree that legislative reform is indeed required in the immediate future to prevent the release of convicted paedophiles and other sex offenders into the community where there is a high risk of their recidivism.

As legislators, we have a responsibility to do whatever we can within our power to protect our constituents from some of the most dangerous and unreformed criminals. It is therefore absolutely critical for our parliament to work together in a bipartisan, and multipartisan way perhaps these days, in order to ensure that we get this legislation right, and get it through swiftly and effectively.

The impetus for the introduction of this bill is the potential release on licence of Colin Humphrys, pursuant to section 24 of the act in question. The Supreme Court's determination on 27 March this year to grant his release was subsequently appealed by the Director of Public Prosecutions, a matter that was heard on 23 May. Although the Full Court has not yet delivered its decision on this case, we should be prepared for any outcome by ensuring the necessary legislation is in place to facilitate action that is in line with community expectations and clearly what most South Australians would consider in the best interests of their community.

I know the Marshall Liberal government is pleased that this bill will receive the support of the opposition in the other place, and we expect in this place, having introduced its own bill to deal with this matter and then subsequently withdrawn it in order to support this bill, which it has done in an urgent manner. That is, in my view, the way in which this parliament should work. When matters come that are in the public interest, they should receive the full support of the parliament.

Mr Humphrys is regarded as one of the worst known sexual predators in South Australian history, with his offences spanning over three decades and having occurred in five different states. Over this time, he exhibited persistent recidivist behaviour before being convicted for abducting and abusing a nine-year-old boy between 1990 and 1991. After being gaoled for offences associated with these events, he was imprisoned indefinitely for the sexual assault of a young boy in a toilet block in Adelaide in 2009.

I am aware that he had previously applied for release on licence in 2013, which was withdrawn due to unfavourable medical and Parole Board reports. His most recent application was granted, however, as I understand it, on the basis that current measures to supervise him at large in the community were deemed to be sufficient by the judge.

This decision has raised serious questions as to the adequacy of our current relevant statutes. I think it is fair to say that the community respectfully disagrees with the decision in this case. Under existing provisions within the Sentencing Act, the paramount consideration of the court must be the safety of the community when determining the release on licence of an offender subject to an order of indefinite detention.

As indicated by the Attorney-General in the other place, the court must then take into account the following: reports of at least two qualified medical practitioners as to whether the person is incapable of controlling, or unwilling to control, his or her sexual urges; any relevant evidence or representations that the person may wish to put to the court; any other report ordered by the court; evidence tendered to the court of the estimated cost directly related to the release of the person on licence; Parole Board reports resulting from the periodic reviews on the progress of the person while detained; the Parole Board's opinion on the effect of the person's release into the community and probable circumstances of the person if they are released on licence; the recommendation of the board as to whether the person should be released on licence; and finally, any other matter that the court believes is relevant.

I note the Attorney-General's further comment that the court has previously indicated its view that, regardless of the risks an offender released on licence might pose to the community, it could be adequately protected through steps undertaken by the Department for Correctional Services and other agencies. Members of parliament obviously do not accept that this assessment should apply indiscriminately to all cases and I was personally shocked at the court's decision to release Humphrys into the Bowden-Brompton area.

Indeed, as a resident of a nearby suburb, it is concerning to think that someone with his record could be in such close proximity to my own children and family. I know that my thoughts were not unlike those of many local residents, as we have since seen and heard. As evidenced by Humphrys' deplorable and depraved history of sexual crimes, paedophiles and sex offenders in general can be both opportunistic and calculated in their approach. We simply cannot afford to put South Australians at the mercy of their uncontrolled sexual instincts.

The government's bill seeks to address these concerns through reforming the current application process for a detainee's release by first including a requirement for the applicant to satisfy the court that they are both capable and willing to control their sexual instincts. Only if the court is satisfied of this capability and willingness can it then proceed to consider whether the detainee should be released on licence or have their indefinite detention order discharged, with the ultimate consideration being the safety of the community.

I note in the bill there is an exception to this, which is if the court is satisfied that the applicant no longer presents an appreciable risk to the safety of the community due to their advanced age or infirmity. I am aware this particular provision was discussed at length during the committee stage of debate on the bill in the other place, and the government has since filed amendments to respond to some of the contentions that were raised, as the Hon. Mr Pangallo has outlined in some detail. I look forward to discussing these amendments in detail when we have the debate in this place.

It was suggested by the Attorney that this particular provision was warranted due to the inevitability of ageing sex offenders in prison, attributed to the removal of the statute of limitations for prosecution for paedophile offences. At least some honourable members present in this place today may recall this was, in fact, a result of legislation that was introduced by my former colleague, Andrew Evans, back in 2002. At the time, he was the only Family First representative in our parliament.

I recently saw in the media that he was quoted as saying that the passage of his bill, which received the full support of members in both houses, is what he considers to be his highest achievement during his time in this place. It is quite a significant statement, as I believe Andrew certainly had much to be proud of during his tenure in this place. He then humbly said that the change in law put a 'few people in gaol', which is quite an understatement, given that within just five years of the enactment of his legislation, 33 sex offenders were convicted for historical sex offences, with 585 charges finalised by the courts involving 74 accused perpetrators. There is no doubt that since that time many more victims have been able to obtain justice and, hopefully, some sense of closure following their traumatic ordeals.

The impact that a sexual assault can have on a person can be devastating and, unfortunately, in too many instances, can have lifelong consequences. This is one of the many reasons that I, myself, successfully introduced legislation in 2010 to prevent future assaults of this nature by giving judges the power to ban convicted paedophiles from accessing the internet.

Prior to this, paedophiles could be ordered to stop physically loitering around children but there were no provisions to prevent predators from stalking and grooming adolescents online. As most would appreciate, these laws are becoming increasingly relevant due to the prevalence of smart devices and the fact that children are using the internet at a younger age than ever before. It is simply frightening to think of the ease of access these predators have to most teenagers and, indeed, many pre-teens these days, through a variety of social media platforms and other applications at a stage in life when they can be at their most vulnerable.

We are also now seeing what is referred to as Carly's Law, debated in the other place as well, which seeks to make it an offence for adults to knowingly communicate with a child and make arrangements to meet them, or have intent to commit an offence against them, following false representation concerning their identity.

Of course, the bill I am referring to is colloquially named after the tragic death in 2007 of Carly Ryan, who was murdered at Port Elliott by 50-year-old Garry Newman, who initially disguised himself as an 18-year-old musician to engage with her online before arranging their meeting. It was soon discovered that Newman had been simultaneously communicating with a second young girl in Western Australia. Thankfully, he was caught and convicted before he was able to inflict any physical harm on her also, but it certainly speaks to the heinous capabilities of certain sex offenders and the need for unreformed perpetrators to be kept behind bars.

I understand the opposition has filed a number of amendments to allow for the Parole Board to veto decisions made by the court in relation to the release of detainees, with the statutory authority effectively acting as a final arbitrator. As the Hon. Mr Pangallo pointed out, this may raise some constitutional issues with respect to the Parole Board having somewhat higher authority than the courts. For that reason, I will not be supporting the amendments as lodged by the opposition.

Whilst I believe they are lodged with good intent and may serve some place in this debate, I am not prepared to risk any delay in this legislation or any possible constitutional challenges that may result, should they pass, and therefore delay this legislation from passing. It is too significant. No doubt, the minister will explain this in further detail during the committee stage.

In closing, I reiterate my full support for the government's proposed legislative reform and I trust this bill receives timely passage in the best interests of the entire South Australian community accordingly. I fully support the bill.

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