Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 28 February 2019.)

The Hon. D.G.E. HOOD (16:43): I rise in strong support of this bill, which is a result of the Marshall Liberal government's comprehensive review of current sentencing provisions in which numerous legislative deficiencies and inconsistencies have been identified. It is of utmost importance to this government that appropriate reform is initiated as required in order to maintain public confidence in our criminal justice system, and ultimately to keep the safety of the South Australian community and, importantly, the welfare of its victims as the highest priority.

In doing so, the right balance needs to be struck between removing loopholes that can potentially be exploited by serious offenders and ensuring the courts are afforded some discretion in the sentencing process. I believe this difficult balancing act, but objective, has been achieved to the best of the government's ability through the proposed amendments to the Sentencing Act 2017 and the Correctional Services Act 1982 in order to address the various concerns with respect to home detention orders (which I will refer to as HDOs from here on) and intensive correction orders (which I will refer to as ICOs) and suspended sentences.

As you would no doubt be aware, I have been a member who has spoken in this place on numerous occasions on these sorts of issues. I do think there is a concern in the community about the way some sentences are applied. I make no disparaging remarks about our judiciary; in fact, I place on the record my complete appreciation for just exactly how difficult the task would be in appropriately sentencing individuals. Every circumstance is, of course, individual. Every offender has their own individual circumstances. That is one impetus for the legislation that is before us today.

This is indeed a difficult area—I acknowledge that—but I also think that the government's attempt to address these matters is significant and is important because there is some disquiet in the community about what appears to be, in the eyes of some, some leniency or some inappropriate sentencing, particularly when it comes to the most serious of crimes.

The bill that we have before us is an attempt to address what has been, I think, a lengthy period of express concern, sometimes by only small sections of the community but other times by very substantial groups within the community. One thing this parliament can often be accused of—I think unfairly—is that it treats sentencing as a political football. I do not believe it does. The former Labor government, for example, when the then member for Ramsay the Hon. Mike Rann was premier, made somewhat of an identity from approaching these matters and did so often in the media, and his government became known for taking on these issues. I make no criticism of that; in fact, I was broadly supportive of that approach.

I think the Marshall Liberal government has been aware that it is an issue that holds significant concern within the community and therefore the government has chosen to respond. I support that. I think it is appropriate and it has resulted, to some degree at least, in the bill we have before us today, and, of course, in other pieces of legislation that members would be aware of, some of which is on the Notice Paper as we speak, some of which has already passed this place and some that is yet to come.

In response to recent events, it has been evident that the possibility of sexual offenders being permitted to serve imprisonment sentences on home detention in particular is of great concern to the community. Indeed, one only has to listen to talkback radio or read the letters to the editor or engage in other community forums, whether it be online or elsewhere, and I think the statement I have just made is backed up by ample evidence. The community is concerned about these sorts of issues and I think rightly so. There is a risk to the community for individuals to be on home detention in some circumstances, hence the bill before parliament today.

Members would be familiar with the case of Vivian Deboo, who pleaded guilty to four counts of indecent assault and two counts of gross indecency and was sentenced last December to some six years and seven months imprisonment, with a non-parole period of five years and three months. His offending against two young brothers, decades earlier, whom he had groomed through taking advantage of his position of trust, understandably devastated the lives of these men and their families.

Although 74-year-old Deboo's bid to serve his sentence on home detention was rejected by Judge Stretton—something which I applaud—due to his opinion that there was an appreciable risk of recidivism, I can only imagine the victims' further distress upon learning that Deboo would be appealing that decision. This development is particularly disturbing, given Deboo is a known repeat offender and was previously gaoled for two years in the 1990s after being convicted for sexual abuse perpetrated against three other boys. That is a total of five people.

We are now awaiting the outcome of his appeal, so the swift consideration of these timely amendments is certainly warranted. That reinforces the point I make, that what we have here is a situation that has disturbed the community. There is great concern in the community that people convicted—in this case, Deboo—of really quite heinous crimes against very vulnerable victims would result in the potential for home detention. That is not, I think, broadly supported in the community. That is why the Marshall Liberal government has responded with the amendments to legislation in the form of the bill we see before the parliament. That is why I am a strong supporter of exactly that approach.

Members would be aware that I have spoken a number of times on similar issues over the past 13 years in this place, and I will be consistent on that. As I say, I am pleased to see that our government has decided to take a legislative response to this because, ultimately, it is the only thing that will deal with it adequately and restore and maintain public confidence in these sorts of cases.

The Deboo case is a worthy impetus for this bill, which seeks to clarify the restrictions on the ability for a sentencing court to permit sex offenders to serve imprisonment sentences pursuant to home detention orders. Wording under section 71 of the Sentencing Act will be adjusted, as outlined in the bill, to make it explicitly clear that a court must be satisfied that a defendant's advanced age or infirmity means they no longer pose an appreciable risk to the community and that the interests of the community would be better served by the defendant serving a sentence on home detention rather than in custody.

That is the crucial aspect of this proposed legislation in the form of the bill before us: the court needs to be satisfied that the individual in question no longer poses an appreciable risk to the community. It is a very high bar, and that is where it should be, in my view. That is why I strongly support the Marshall Liberal government's approach to this matter. We have a situation where community confidence in sentencing is critical, and questions have been raised. Setting the bar at this level—that is, that the court is satisfied that the individual, the defendant, the accused, no longer poses an appreciable risk to the community—is, I think, an appropriate place to set that bar.

Even further than that, the court also needs to be satisfied that the interests of the community would be better served by the defendant serving a sentence on home detention rather than in custody. Again, some might argue that that is a particularly high bar. I would agree with them and say rightly it should be; that is exactly as it should be. In the case of somebody who poses a risk to the community, there needs to be a very, very good reason why they should not serve a very long custodial sentence. This bill addresses that matter, I think, adequately and appropriately.

Just to reiterate, the two key criteria are that a court is satisfied that the individual does not pose an appreciable risk to the community and, furthermore, the interests of the community need to be better served by the defendant serving a sentence on home detention than in custody. I am very pleased to support a bill that poses those two measures.

At present, I am aware that there has been some ambiguity as to how the current provision should be interpreted in this section, which in theory could enable courts to permit sentences to be served on home detention by taking into account either one of these special reasons tests, as opposed to both being satisfied. That is the crucial point here. Following the passage of this bill into legislation, both of these criteria need to be satisfied, which, again, I firmly believe is appropriate. Frankly, the current situation is unacceptable in the sense that it does allow the possibility for only one of those criteria to be satisfied, which I think can lead to the undermining of public confidence.

I note that the opposition has introduced an amendment in the other place to prevent all convicted sexual offenders from being eligible to serve sentences on home detention. That was defeated in the other place, and I appreciate the Attorney-General's position that a blanket rule may cause significant issues to rise. To be frank, at an individual level, I am attracted to something as simple as that, but I think the Attorney's position is sound in that she has explained, I think quite rightly, that there are these so-called Romeo and Juliet cases, where an appropriate defence may apply.

As I understand it, the opposition amendment to our bill would make it very difficult for common sense to prevail in those so-called Romeo and Juliet cases. For members' information, Romeo and Juliet is, of course, a reference to the famous Shakespearean play, but it relates to the 18-year-old young man with a younger woman, typically—it does not have to be that way, but often that is the way—maybe 15 or 16 years old, genuinely in love, involved in sexual activity.

Members interjecting:

The Hon. D.G.E. HOOD: A few sniggers from the gallery. Under the amendment that is being proposed by the opposition, certainly as I understand it, it might tie the court's hands and commit the court to passing a custodial sentence on the so-called Romeo in that circumstance. I think most members here, if not all members, would agree that that is probably not ideal. That may not be the opposition's intention. Of course, they will speak for themselves when the time comes to move it.

The Hon. C. Bonaros: Or the Juliet.

The Hon. D.G.E. HOOD: Or the Juliet, of course; that is exactly right. I did say that. I said it is usually the way, but not always the way. That is right; it could indeed be the Juliet. I think that is quite right. That is our position on the amendment as it stands. We will make a final position when the opposition moves the amendment and cares to explain it.

That Romeo and Juliet situation—or Juliet and Romeo if we prefer, although I will go with Romeo and Juliet; that was Shakespeare's preferred way of putting it—is real. It is the real world out there; these things happen. I certainly would not be supporting anyone being incarcerated under those circumstances. I am sure the opposition would not neither. I am not suggesting that they would. That is a matter that we need to get exactly right before this bill passes this place.

There are some other minor matters in the bill that it is important to draw members' attention to. It will also remove inconsistencies in the specified precluding offences, as they are known, between home detention orders and the ICOs and suspended sentences, unless there is a policy basis for any exceptions. There is no logical reason in my mind for our legislation to enable courts to hand down a suspended sentence for a sexual offence but to prohibit home detention orders as punishment for the same crime, unless special reasons determine otherwise, or for home detention orders to preclude terrorist attacks where suspended sentences do not. This bill deals with a number of these matters and straightens them out, if you like.

Further, the amendments as proposed will ensure undertaking intervention programs is mandatory for offenders as part of the ICOs, given they are currently imposed at a court's discretion. This bill would make it mandatory. Operational issues in relation to the cumulative home detention orders and ICOs and their interaction with unexpired parole periods are also addressed, as are loopholes in relation to breaches of the home detention orders and ICOs.

Also worthy of note, I think, is that sections 31 to 35 of the Sentencing Act will be repealed with this bill, which the Labor government introduced previously to enable courts to take into account additional charged offences in the sentencing of a principal offence where the defendant escapes conviction and penalty for those other crimes. I agree with our Attorney-General that there is no justification for this, in our view, and that is our position.

I am of the belief that our parliament should be determined to ensure that laws dictating our state's sentencing regimes continue to reflect community sentiment, with the protection of our most vulnerable as the paramount concern whilst providing for the opportunity for the rehabilitation of certain offenders with very careful consideration on a case-by-case basis.

I trust the Attorney-General's assessment, following extensive consultation on this bill, that we must be prescriptive enough to provide adequate guidance to our judiciary, but not overly so—I think that is important as well—where it is unable to exercise any discretionary powers whatsoever when dealing with extraordinary circumstances. This is the nuance of sentencing, as we know. This is the fine line we walk, if I can put it that way.

I believe that the parliament should have a strong say in what the expectation is in the overwhelming majority of cases, but we should not tie the judiciary in all circumstances because there are those nuances, if you like. There are those real-world situations, for example, the so-called Romeo and Juliet circumstances—or Juliet and Romeo, if you prefer—which require the court to have the scope for common sense in sentencing those matters. I think that is the right approach and I think this bill strikes the right balance in that regard.

I am pleased that the Marshall Liberal government is taking the necessary action without delay to both tighten and strengthen our sentencing status in the best interests of South Australians. I believe that in the passage of this bill South Australians will be safer, that perpetrators of these horrendous crimes will be dealt with appropriately in the main and that the passage of this bill will make it much more likely that people guilty of these offences will be dealt with as society would expect them to be dealt with.

I also believe it will create a situation where there will be fewer variances, if you like, fewer exceptions, fewer circumstances where individuals are perceived to have got off lightly. I am a strong supporter of the bill. It is one I am pleased to support in this place.

The Hon. T.J. STEPHENS (17:01): I certainly support the bill and commend the Hon. Dennis Hood for his remarks, many of which I strongly agree with. I recently spoke in this parliament about what I had experienced in having a person's sad, horrific experience brought to my attention. It is one of those rare cases where the victim has managed to put together what I would say is an exceptional life and it has caught me by complete surprise.

I was alerted to the trauma of this particular person—and it was regarding Mr Vivian Deboo, who is now incarcerated, thank goodness—and the reliving of the horrific events that happened. This is someone who has managed to get on with their life and do an outstanding job of rebuilding their life, who has had the trauma thrust upon them of having to go through years of inquisition by a defence team as to the veracity of their story, even though the perpetrator had been locked up prior for an incredibly short period of time for similar horrific offences.

So I have seen firsthand the trauma at the thought that this so-called now reformed citizen, who was trying to portray himself as a pillar of the community, was appealing for home detention. I went to some lengths to explain how this particular person has done an outstanding job of rebuilding his life, but we have become aware of some people this particular victim knew who could not get on with their life, who, sadly, have taken their own life.

How often do you think it would be the case, Mr President? These horrific, disgusting and violent crimes were perpetrated against innocent children who could not defend themselves and were not believed by people they loved and respected. How many of those people could not rebuild their lives? I suspect that our gaols have a number of victims who turned to drugs and crime because they had no support and will perhaps never rebuild their lives in any fashion.

Having seen the trauma firsthand, it is abhorrent to think that a disgusting perpetrator may be placed on home detention—eating home-cooked meals and living in a comfortable, warm environment with a supportive partner—while these people have had to deal with these issues throughout their lives. I am pleased that members in this place have shown that they are not prepared to accept the poor sentencing that these people are looking to achieve.

We have seen a number of recent reports in the media about similar instances where people in positions of trust have abused children. We have also seen the affect that it has had on those victims. Watching the victims when those sentences are handed down, I have seen the stress on their faces and the relief they felt at those custodial sentences. I still do not think those sentences are adequate but they at least, at a minimum, fit those horrendous, horrific crimes. I would personally like to see more severe sentencing for those crimes.

In the past, parliamentarians have failed to understand that these victims have not just washed away these crimes, they have lived with the abhorrent crimes committed against them for their whole lives, and they will continue to do so. At the very best, they may manage to deal with them in a way that helps them to get on with their lives, but we know that many will not. Many have not had the capacity to come forward and report these crimes.

As I said before, many of these victims have turned to drugs and crime. Many have failed to sustain any meaningful relationships because the spectre of what happened has hung over them. To me, it is totally unacceptable that a disgusting paedophile may live out their life in the relative comfort of their own home on home detention, rather than in incarceration, all because the crime happened some time ago. I am sure that this council will support the intent of this particular bill.

Debate adjourned on motion of Hon. E.S. Bourke.