Sentencing (Suspended and Community Based Custodial Sentences) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 April 2019.)

The Hon. C. BONAROS (16:24): I rise on behalf of SA-Best to speak in support of the bill, which aims to reform the community-based sentencing options available to the courts: suspended sentences, home detention and intensive correction orders. It is critical that these options are available to the courts. They are cost effective and rehabilitative alternatives to harsh punitive custodial sentences for some offenders, but we need to leave the courts and the chief executive of the Department for Correctional Services, who can also grant home detention, in no doubt as to our legislative intentions in this bill.

We are making it crystal clear in the bill that these options are not to be made available to serious sexual offenders and terrorists, those who have shown by their offending and often re-offending that they pose an unacceptable risk to the community. It is a well-accepted principle of sentencing that community safety must be the paramount consideration. In particular, the safety of our children and the welfare of victims must be the highest priority. We as legislators need to be certain that the protection of the community is best served by the sentencing options that are available to and imposed by the courts.

This bill, in our view, seeks to limit the discretion of the courts to release certain types of serious offenders back into our community under community-based sentencing options in an appropriate way. It clears up the inconsistent, technically complex and confusing community-based sentencing regime that currently exists.

The bill also responds to SA-Best's strong and well-known position of rejecting lenient treatment of paedophiles, perpetrators of child and other sexual assault offences, rapists and terrorists. Indeed, it was deeply offensive and repugnant to SA-Best members of the Legislative Council and other members of the crossbench, my colleague Frank Pangallo and myself, for the Treasurer to disingenuously infer the opposite during the recent second reading debate over the prisoner voting bill.

Sentencing legislation needs to reflect ever-changing community standards. Community expectations in regard to serious sexual offenders and terrorists have been made very clear to us in SA-Best. The community, including victims, understandably do not accept serious sex offenders being given community-based custodial sentences. Terrorist acts, such as those at the Lindt Cafe, have made us increasingly aware of the risk that these often lone wolf offenders present if released back into the community.

The community has made it clear that they do not want serious sexual offenders to ever have their sentences suspended or to serve any of their sentence living in our neighbourhoods on home detention or undertaking treatment programs from the safety, comfort and privacy of their home. The community and the courageous victims who have endured unthinkable abuse and then been put through the gruelling experience of the criminal justice system and inadequate compensation and support services for victims are understandably outraged by such cases.

The community needs to have confidence in the criminal justice system's protective function. This confidence has been seriously eroded in recent times. At present, home detention is available as part of a suspended sentence and intensive correction orders can be made for any offence with an imprisonment period of less than two years. We strongly agree with the government that, with very few exceptions, community-based sentencing options should not be available to serious sexual offenders or terrorists and that an overhaul of the sentencing in regard to these serious offenders is long overdue.

However, in this bill there are some very limited and, in our view, acceptable exceptions. The very limited exceptions include provisions for home detention to be available in circumstances of genuine young love offending. This is a sensible provision and one that we have backed in previous legislation.

Another exception exists where the defendant's advanced age or permanent infirmity means that he or she no longer presents an appreciable risk to the community and that the interests of the community would be better served by the defendant serving the sentence on home detention rather than in custody. In regard to the advanced age and infirmity provisions, the bill requires the court to have a positive finding in regard to both limbs of the test and the court cannot have regard to any other matter. Raising the bar in this way is, in our view, appropriate.

We agree with the same very limited exceptions being applied to suspended sentences as proposed in the bill. Intensive correction orders will be further limited and not be able to be served cumulatively or concurrently with another term of imprisonment. It is a significant improvement to see that there will be no more sentencing based on a principal offence only, taking into account further charged offences. Under these reforms, every convicted offence should be properly prosecuted and sentenced.

At the same time, the bill provides for more appropriate penalties if an offender breaches their suspended or community-based custodial sentences. It closes loopholes where offenders could delay a breach being dealt with and avoid penalties for breaches. The bill sends a very clear message to offenders that there is no confusion about the balance of their sentence having to be served in prison if they breach a community-based sentence and, importantly, that their sentence will be as of the date of the breach. This ensures that court delays and adjournments—which we know due to budget cuts to courts, SAPOL and the DPP are an increasingly common phenomena—cannot work in the offender's favour.

Breaches of community-based sentencing orders are a breach of the trust of the courts, the trust that the courts and the community have placed in the offender. In making such orders, the court is saying, 'We are putting the responsibility back on the offender and trusting them to do the right thing.' Breaches of community-based orders must be responded to in the strongest terms with a swift return to detention.

Research tells us that in regard to serious sex offences and sex offenders, their return to the community presents us with a real and significant risk. Whilst there is some academic debate about rates of recidivism, offenders who prey upon extra familial male victims have a higher rate of reoffending, conservatively estimated to be around 52 per cent. Child sexual assault offenders remain at risk to reoffend long after they are discharged, in some cases 15 to 20 years later. When you consider that the vast majority of sex offences are never reported and even when charged are the most likely to be discontinued in the courts, these statistics confirm that community concerns are justified.

SA-Best supports some of the Labor amendments which further strengthen the bill. In particular, we strongly support amendment No. 1 [Maher-1], that is the amendment proposed by the Hon. Kyam Maher, that where the victim of sexual assault has been a child that there should be no exceptions available to allow for community-based sentencing. The honourable member's amendment No. 10 is also useful in that it clarifies these provisions if the offender is being sentenced in the first instance or on appeal.

The honourable member's amendments Nos 1 and 2 [Maher-2] similarly bolster the bill and ensure that an offender can be indefinitely detained by the courts. We are sure that the community expects that an offender who is assessed as being at high risk of reoffending and is unwilling or unable to control their sexual instincts is not released back into our neighbourhoods. They expect that a serious child sex offender such as Stephen Sullivan will not be given the opportunity to commit a fifth breach of his community-based order, having committed breach number four by cutting off his GPS bracelet and inviting a woman with teenage daughters to his house.

It is not acceptable that another notorious child sex offender has breached his paedophile restraining order more than 50 times in 16 years. It is absolutely horrifying to me to think of the victims who have been put at risk by these breaches. There are recent cases that provide further strong indications of the community's expectations that community-based sentencing options should not be available to repeat serious sexual offenders where the victim has been a child and the offender has been assessed by expert psychiatrists to be at high risk of further reoffending.

In 2008, after two custodial sentences, Thomas was given a suspended sentence, only to reoffend and be returned to prison in 2016. This rotating door in and out of prison should not be available to serious sexual offenders and terrorists—offenders like Humphrys and Thomas. I will speak on the Labor amendments further as they are moved by the member opposite, but in general, in our view, the bill sets appropriate limits on the court's discretion to impose suspended and community-based sentences and it does so consistently across all three options, that is, suspended sentences, home detention and intensive corrections orders.

As I said, there are a number of amendments being proposed by the opposition that we are extremely supportive of. These reforms are additional and welcome safeguards to improve community safety, and I am pleased to be supporting the second reading of the bill.

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