Legislative Council Fifty-Fourth Parliament, Second Session (54-2) 54 2 Parliament of South Australia Legislative Council published Bills Bills Statutes Amendment (Sentencing) Bill Statutes Amendment (Sentencing) Bill Statutes Amendment (Sentencing) Bill Second Reading Second Reading The Hon. R.I. LUCAS Legislative Council The Hon. R.I. LUCAS (Treasurer) (21:01): 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 into Hansard without my reading them. Leave granted. Mr President, this Bill amends both the Sentencing Act 2017 and the Criminal Procedure Act 1921 to improve how the sentence reduction scheme operates within our criminal justice system. It responds to the recommendations made in the report by the Honourable Brian Martin AO QC following his 2018-19 Review of the Sentence Reduction Scheme. The sentence reduction scheme is contained in Part 2, Division 2, Subdivision 4 of the Sentencing Act. The scheme was introduced by the former Labor Government through the Criminal Law (Sentencing)(Guilty Pleas) Amendment Act 2012 and came into operation on 11 March 2013. The scheme adopted into legislation the principal that had previously operated as part of the common law: that is, an offender's sentence can be reduced if they plead guilty before trial. It did so by creating a 'tiered scheme', specifying the maximum percentage by which an offender's sentence can be reduced based upon the particular stage in the court process at which the guilty plea is entered. When it was introduced, the stated purpose of the scheme was to tackle the problem of delays in the criminal courts in this State, to provide a fairer and more transparent scheme than existed at common law, and to ensure that the reductions received by offenders diminish rapidly for pleas entered later in the prosecution process. Importantly, the scheme aimed to encourage guilty defendants to plead guilty early in the prosecution process, by linking the extent of the reduction available to a defendant directly to the stage of the court proceedings at which the plea is entered. The earlier the plea is entered, the greater the reduction to be applied. This was intended to reflect the benefits that early guilty pleas provide to the community, the justice system and to victims of crime. Mr President, let us be clear on one thing. The sentencing reduction scheme that currently operates in our state was developed by, introduced, and passed the Parliament by, the former Labor Government. This is their scheme and it is their legacy. The Government at the time openly stated that the main objective was to improve the operation and effectiveness of the criminal justice system by decreasing delays and backlogs in cases coming to trial. Before I go on to speak about what the Bill seeks to remedy, I want to reflect on the words of the former Deputy Premier, the Hon John Rau SC, when he first introduced the legislation into the South Australian Parliament. He said, and I quote: '...the legislation should not result in the granting of unduly lenient sentences for offenders through excessive discounts' and further that, 'any perception that the bill will allow offenders to escape their just deserts and appropriate punishment by pleading guilty is mistaken'. Mr President, those words should haunt the Labor members opposite, for we all know this prediction has not been borne out in practice. In September 2018 Mr Brian Martin AO QC was appointed to conduct a review into the sentencing reduction scheme. The Report, which was published in June 2019, made a number of recommendations suggesting appropriate amendments be made to the scheme. Some of those recommendations represent what could be described as 'technical' changes to the Sentencing Act and the Criminal Procedure Act, to ensure that the sentencing process operates more smoothly and fairly; whilst other recommendations represent more substantial policy changes. Mr Martin recognised in his report a tension between two, often competing, public interests. These are, the public interest in 'the protection of the public through the imposition of sentences that will best achieve that objective' on the one hand, and the public interest in 'assisting victims and in economic considerations attached to the operation of the criminal justice system' on the other. Mr Martin both examined data and received submissions from criminal justice sector stakeholders, members of the public, academics and victims. The data he examined revealed that the scheme has encouraged a greater number of defendants to plead guilty early in the proceedings, but has not, on the whole, shortened the time taken to finalise serious matters. A key theme to emerge during consultation was that victims feel devalued by the current scheme which is exacerbated by the extent of the available discount (up to 40 per cent for some offences). The significant reductions received by offenders are also out of touch with community expectations; which is particularly so when the offending is serious and there is a strong prosecution case. Public sentiment was that a significant reduction being applied to a sentence that the court has otherwise deemed appropriate suggests that the offender is not receiving a punishment that matches their crime. However, a number of criminal justice sector groups expressed support for the retention of the scheme in largely its current form from, on the basis that it provided certainty for defendants and thus greatly encouraged the guilty to plead guilty at an early stage. The Law Society in its submission to Mr Martin, however, acknowledged that, even though the scheme appeared to be working well from a caseflow management perspective, if public confidence in the scheme is lacking then there is a case for reform. Ultimately, Mr Martin concluded that the maximum discounts available to offenders for serious offences are too high, but that by making adjustments to the existing scheme, an appropriate balance could being struck between an affordable criminal justice system on the one hand, and public confidence in that system on the other. That is precisely what this Bill does. Mr President, most of the Recommendations made by Mr Martin have been adopted in this Bill and all key Recommendations have been adopted; namely: 1.	reducing the maximum discounts available for guilty pleas for all major indictable offences; 2.	further reducing the maximum discounts available for guilty pleas to serious indictable offences including (amongst others) offences which result in the death of or serious harm to a person, and serious sexual offences; 3.	retaining the discounts available in the Magistrates Court; 4.	ensuring that Courts can apply a lesser discount if a guilty plea is entered in the face of an overwhelming prosecution case; and 5.	ensuring that Courts can apply a lesser discount if a defendant: has shown no genuine remorse for his or her offending; or has intentionally concealed his or her crime; or has disputed the factual basis of a plea and a Court has not found in their favour. Adoption of these Recommendations will ensure, firstly, that reductions received by defendants are more closely aligned with community expectations and, second, that courts can apply the reductions more flexibly than has been the case to date. Turning to consider the Bill more closely, the most significant amendments are found in Part 3 of the Bill, which amends the Sentencing Act. The scheme for reductions of sentences for guilty pleas to summary and minor indictable offences in the Magistrates Court is found in s 39 of the Sentencing Act. As recommended by Mr Martin, the reductions available under this provision are maintained at the current levels. The scheme for reduction of sentences for guilty pleas in other cases—that is major indictable offences, and other offences finalised in the District and Supreme Courts—is found in s 40 of the Sentencing Act. The Bill amends this section so as to provide for two separate tiered schemes; one for 'serious indictable offences', and one for all other offences dealt with under s 40. The Bill provides that a 'serious indictable offence' is defined as a 'serious offence of violence' for which the maximum penalty is, or includes, at least 5 years imprisonment, a 'serious sexual offence' for which the maximum penalty is, or includes, at least 5 years imprisonment, or any other offence prescribed by regulations for this purpose. 'Serious offence of violence' and 'serious sexual offence' are separately defined by reference to particular offences against the Criminal Law Consolidation Act 1935. Defined in this way, 'serious indictable offence' will include, for example, offences of murder, manslaughter, causing death or serious harm by dangerous driving, rape, maintaining an unlawful sexual relationship with a child, unlawful sexual intercourse, aggravated indecent assault, and offences relating to the production and dissemination of child exploitation material. For these serious indictable offences, the maximum reduction that a court may apply for a guilty plea will be up to 25 per cent, which has been reduced from the current maximum of up to 40 per cent. The reductions available to defendants pleading guilty to serious indictable offences will be similarly reduced at each 'tier', such that a plea entered at the first Arraignment in the District or Supreme Court will attract a maximum reduction of up to 5 per cent. Currently, the applicable reduction is up to 15 per cent. For other offences falling within the scope of s 40 of the Sentencing Act the reductions at each tier are, consistent with the Recommendations of Mr Martin, reduced by 5 per cent. Accordingly, a plea within 4 weeks of the first appearance will attract a reduction of up to 35 per cent (compared with 40 per cent), whilst a plea at first Arraignment will attract a reduction of up to 10 per cent (compared with 15 per cent). In addition to this, both sections 39 and 40 are amended so as to provide that all sentencing courts must have regard to the following additional factors when determining the appropriate reduction in respect of any offence: First, whether the defendant disputed the factual basis for sentence and a hearing occurred in relation to that dispute, which was not determined in favour of the defendant; Secondly, whether the defendant intentionally concealed the commission of his or her crime and, if so, the period of time for which that concealment persisted; An example of this might be a murder in which the offender has hidden the deceased's body and other evidence of the murder, and has told lies about the deceased having run away in order to hide the fact of their disappearance; Thirdly, whether any genuine remorse on the part of the defendant is so lacking that a reduction by the percentage contemplated would be so inappropriate that it would, or may, affect public confidence in the administration of justice; and Fourthly, whether the prosecution's case against the defendant is so overwhelming that a reduction by the percentage contemplated would be so inappropriate that it would, or may affect public confidence in the administration of justice. The latter two factors—genuine remorse and the strength of the prosecution case—are expressed as mandatory considerations once a court is satisfied that the threshold has been reached; that is, where there is so little remorse, or the prosecution case is so strong, that the contemplated reduction may affect public confidence in the administration of justice. This seeks to strike a balance between flexibility of approach on the one hand—that is, enabling a court to lessen the reduction in appropriate cases—and ensuring that courts are not overwhelmed with the task of having to make an assessment as to the strength of the prosecution's evidence in relation to every charge for every offender that comes before the court. Such a requirement would create an enormous burden for courts and may also serve to further traumatise victims of crime if, for example, a court determined that the prosecution case was 'weak', particularly if it relied largely on that victim's evidence. Importantly, the Bill provides that a court should ordinarily make the assessment as to the strength of the prosecution case by reference to affidavits and other documentary evidence before the court. This is to avoid witnesses—for example, the victim in a sexual assault—being required to give evidence solely for this purpose. Such a situation would significantly negate the benefit of a guilty plea. Mr President, the Bill also extends, in both the Magistrates Court and the Higher Courts respectively, the time within which defendants can receive the first 'tier' of reductions in very limited cases. In his 2019 Review, Mr Martin received submissions to the effect that the strict four-week timeframe is too short for some defendants to properly instruct and receive advice from a lawyer. This is often particularly the case for Indigenous defendants living in remote communities, living itinerant lifestyles, or for whom English is not their first language. Such defendants may be many hundreds of kilometres from a lawyer, and may have very limited access to linguistically and culturally appropriate interpreters. Similar submissions were received, and a similar recommendation made, by Mr Martin when he conducted a review of the scheme in 2015, which was mandated by s 9 of the Criminal Law (Sentencing)(Guilty Pleas) Amendment Act 2012. Accordingly, the Bill amends sections 39 and 40 of the Act to provide that a court may apply the highest reduction if a plea has been entered within 14 days of the expiry of the first tier, and the court is satisfied that the defendant was unable to obtain legal advice due to remote residency, itinerancy, or communication difficulties stemming from an inability to speak reasonably fluent English. Mr President, the Bill also repeals s 38 of the Sentencing Act, which currently allows for a reduction in penalty of up to 10 per cent even when a defendant did not plead guilty, put the prosecution to proof, and was convicted following a trial, but all procedural requirements were complied with. Mr Martin's report concluded that this provision is out of step with community expectations, and moreover, that compliance with procedural requirements will often be more of a reflection on a defendant's lawyer than on the defendant themselves. The Marshall Liberal Government agrees that this reduction in sentence should no longer be available to guilty defendants who have put victims through the trauma of giving evidence at a trial. Part 2 of the Bill amends the Criminal Procedure Act 1921. These amendments are what might be described as more 'procedural' in nature. The most significant amendment is found in clause 5, which creates a new Division 3A of Part 5 of that Act, comprising a new s 115A. This will empower a Magistrate to take a plea to a statutory alternative to a charged offence, or an attempt to commit the charged offence. This amendment is important in the context of the sentence reduction scheme, because it will mean that the sentence discount 'clock' (which determines the maximum reduction that can be applied) for all offences—both charged offences and uncharged alternatives or attempts—will start ticking at the defendant's first court appearance. Currently, if the defence and prosecution agree upon a plea to an uncharged statutory alternative or attempt, a fresh Information would need to be filed in order for the plea to be entered, and the 'clock' would start ticking all over again at this point In this situation, defendants would be entitled to a reduction of up to 40 per cent notwithstanding that the plea to the lesser alternative was not entered—or even offered—until well after four weeks after their first court appearance. Section 115A will remedy this anomaly. Mr President, this legislation will put the protection of the community back at the heart of sentencing laws in our state. The amendments contained in this Bill will remedy the errors made by the former Labor Government when they chose to place a desire for improved court efficiency over and above all other considerations in the sentencing process. Whilst we will always strive to ensure that our court system is as efficient as possible, it is our view, that is the Marshall Liberal Government's view, that this should never come at the cost of justice. I commend the Bill to Members and I seek leave to table a copy of the Explanation of Clauses. Explanation of Clauses Explanation of Clauses Part 1—Preliminary 1—Short title 2—Commencement 3—Amendment provisions These clauses are formal. Part 2—Amendment of Criminal Procedure Act 1921 4—Amendment of section 108—Division not to apply to certain matters A new subsection (3) is inserted for the purposes of avoiding any doubt in relation to the operation of section 108(2). 5—Insertion of Part 5 Division 3A New Division 3A is inserted into Part 5 of the Act: Division 3A—Pleas to alternative offences and attempts in the Magistrates Court 115A—Pleas to alternative offences and attempts in the Magistrates Court New section 115A makes provision in relation to a person charged with an offence who please guilty to an alternative offence or an attempt to commit the offence charged. It provides for the Magistrates to sentence the person or commit the person for sentencing in a superior court (if relevant). Provision is also made for circumstances where the person changes or withdraws their plea of guilty. 6—Amendment of section 133—Conviction on plea of guilty of offence other than that charged The phrase 'sentenced for the offence to which the plea of guilty is entered' is added after the reference to a person being convicted on a plea of guilty to an alternative offence to the offence charged. Paragraph (c) is deleted. Part 3—Amendment of Sentencing Act 2017 7—Repeal of section 38 Section 38, which relates to the reduction of sentences for cooperation with procedural requirements, is repealed. 8—Amendment of section 39—Reduction of sentences for guilty plea in Magistrates Court etc Certain considerations are added to the list of considerations a court must have regard to in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea. A provision is included to allow for the maximum sentence reduction to be applied in the sentencing of a person who pleads guilty no more than 14 days after the expiration of the period during which the maximum sentence reduction is ordinarily available under the section, if the person lives in a remote location, has an itinerant lifestyle or specified communication difficulties. 9—Amendment of section 40—Reduction of sentences for guilty pleas in other cases The various percentages by which a sentence for an offence may be reduced in respect of a guilty plea are amended and the percentages differ according to whether offence is a serious indictable offence or not such an offence. Certain considerations are added to the list of considerations a court must have regard to in determining the percentage by which a sentence for an offence is to be reduced in respect of a guilty plea. A provision is included to allow for the maximum sentence reduction to be applied in the sentencing of a person who pleads guilty no more than 14 days after the expiration of the period during which the maximum sentence reduction is ordinarily available under the section, if the person lives in a remote location, has an itinerant lifestyle or specified communication difficulties. The term serious indictable offence is defined. 10—Transitional provision A transitional provision is inserted for the purposes of the measure. Debate adjourned on motion of Hon. I.K. Hunter.