Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 April 2019.)

The Hon. K.J. MAHER (Leader of the Opposition) (17:37): I rise today to speak to the Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill. This bill makes a number of changes to the way suspended sentences, home detention orders and intensive correction orders are handed down. The changes that the bill will make, particularly in regard to child sex offenders, are largely very minor. Only one amendment grants any real further restriction on such people.

The rest of the changes simply clarify the law and fix outdated wording. The bill makes slight changes to the special reasons test in section 71 of the Sentencing Act, which currently states that an offender being sentenced for a serious sexual offence cannot serve that sentence in home detention unless special reasons exist.

Referencing those special reasons, the court may have regard to whether the defendant's advanced age or infirmity means they are no longer a risk to the community and where the interests of the community would be better served by them serving their sentence in home detention. The bill specifically changes this provision so that both of those must be satisfied in order to grant home detention, and the infirmity must be permanent.

It is very clear what has happened here. The Attorney-General has been found out. She has been found out on a number of occasions in relation to these matters, not acting swiftly and not acting as the community expects the Attorney-General to act. She has clearly been told that community sentiment is not with her, that crossing her fingers and hoping that child sex offenders are not released into the suburbs of Adelaide and around South Australia simply does not cut it. What has happened is that the Attorney-General has rushed the preparation of a bill that is full of errors and inconsistencies and that hardly deals with the issue of child sex offenders and the risks they pose to the community at all.

We have seen the government, embarrassingly, come back to this place with a whole raft of amendments because their bill was so riddled with errors when it was introduced. It is an exceptional embarrassment for an Attorney-General who indicated that the government was taking a lot of time and care and effort with this bill to have to come back with so many amendments. It is a botched job and it requires further amendments that the opposition has helpfully put forward.

It would appear that this bill has created a dramatically inconsistent test for whether home detention and intensive correction orders are available for perpetrators of serious sexual offences. To be eligible for home detention, a serious sexual offender must satisfy the court that they are either aged or permanently infirmed, that they no longer pose a present risk and that the interested communities are better served by that person serving their sentence on home detention.

To be eligible for an intensive correction order, a court must be satisfied that a special reason exists, but the legislation does not spell out what they might be. This area was unpicked during debate in the other place. When asked by my colleague in the other place, the member for Lee and shadow treasurer Stephen Mullighan, about this, the Attorney-General replied:

The only reason that has not been addressed here is that, as I said earlier, we are still awaiting any proposed recommendations from the corrections department as to recommendations they may have as to how we deal with these.

Again, this indicates just how flawed and botched this bill has been, that they had not completed consultation and rushed an incomplete bill into parliament that is still full of errors. As a result, and as an ever helpful opposition, we have filed amendments to fix some of the government's embarrassing oversights—because we are helpful and constructive.

I note that the Treasurer has filed an amendment to remove the special reasons from the intensive correction regime. If stakeholders had been consulted—including Corrections—in the first place, we would not have needed that amendment and we are, of course, minded to support the amendment because that is what we have been saying all along.

The fundamental point I want to return to is the way the Attorney-General has left the door open for dangerous child sex offenders to be released back into the community. Under this bill, there are still possibilities that such paedophiles could be released back into the community. The Attorney-General's bill retains the special reasons for child sex offenders to receive home detention as what we have put before. The Labor opposition does not agree with that proposition. Paedophiles are some of the worst kind of offenders and if given a gaol sentence should be locked away under the terms of that sentence.

As I said, we are being constructive. We did not stand in the way of the bill passing the other place and we would like to see it dealt with as speedily as possible. We have filed amendments to close off the possibility of court-ordered home detention for serious child sex offenders. We will talk about those amendments in greater detail when we get there. There are also amendments that have been filed by the opposition that take into account instances where we have seen a dangerous child sex offender given at first instance indefinite detention for an unwillingness or inability to control their sexual instincts but having that overturned on appeal because they did not take into consideration other regimes.

We think if a Supreme Court judge has taken into account all the things they ought to take into account and hasn't taken into account matters they shouldn't take into account, the mere fact that there were other regimes available should not preclude the determination of indefinite detention for being unable or unwilling to control their sexual instincts to stand. We think that is a sensible amendment that gives effect to, I think, what most in the community would think is reasonable.

With those few words, I indicate that Labor will be supporting this bill. We look forward to the government supporting our amendments, which will help to resolve the many inconsistencies and lack of meeting community expectations that the Attorney-General has created with this bill.

Debate adjourned on motion of Hon. T.J. Stephens.