Statutes Amendment (Recidivist Young Offenders) Bill

Introduction and First Reading

The Hon. K.J. MAHER (Deputy Premier, Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (11:12): Obtained leave and introduced a bill for an act to amend the Bail Act 1985, the Sentencing Act 2017 and the Young Offenders Act 1992. Read a first time.

Second Reading

The Hon. K.J. MAHER (Deputy Premier, Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (11:12): I move:

That this bill be now read a second time.

Today, I introduce the Statute Amendments (Recidivist Young Offenders) Bill 2025. On 6 March 2025, the government announced the Young Offenders Plan to crack down on serious repeat young offenders. The plan includes commitments to toughen bail and sentencing laws, including strengthening penalties for young offenders with extensive criminal histories, as well as giving police greater powers to manage street gangs, similar to what is available for outlaw motorcycle gangs. We also committed to investing $3 million over the next three years from the Justice Rehabilitation Fund for targeted intervention programs to break the cycle of reoffending for young people entrenched in the justice system.

Following the announcement of the Young Offender Plan, the government convened a stakeholder round table with industry and sector leaders to discuss appropriate responses and interventions for serious repeat young offenders. Various aspects of the plan have now been progressed.

The Criminal Law Consolidation (Street Gangs) Amendment Bill 2025 creates a new legislative scheme giving police the tools to target and disrupt the activity of street gangs. This bill was passed by this house on 16 September this year and is now in the other place. A funding arrangement for the design and delivery of a specialised intensive therapeutic intervention program has also commenced.

The model of care will be developed by the Department of Human Services in partnership with community organisations, including Aboriginal community controlled and the community-led sector, including in regional areas. Subject to co-design, the model of care will be therapeutic and clinically informed to provide individualised responses for each young person, recognising there is a high prevalence of undiagnosed disability in this group of young people. This investment recognises that, if we are to strengthen sentencing and bail laws in regard to young offenders, it is critical that targeted, effective diversionary measures and therapeutic responses are in place to ensure that the detention of young people does not itself contribute to the rate of youth, and eventually adult, offending.

I wish to address a misconception about the intended beneficiaries of this investment, which arose during consultation on the bill. The feedback from stakeholders emphasised that it would be more beneficial to invest in early intervention to address the drivers of offending and prevent escalation, rather than wait until a youth is labelled a recidivist young offender. While the investment in a specialised intervention program is seen as complementary to the bill, it is certainly not necessary in order to be able to participate in the program for the youth to be captured by the amended recidivist young offender scheme or to have received a penalty of detention. The program is to be directed at a small cohort of youths identified by SA Police and the Department of Human Services as being most at need of support to break the cycle of reoffending.

The Statutes Amendment (Recidivist Young Offenders) Bill 2025 implements the remaining aspects of the plan relating to the strengthening of bail and sentencing laws. The bill addresses concerns regarding a small cohort of young offenders who are responsible for a disproportionate number of charges before the Youth Court. We know that in the past financial year, 20 young people were responsible for between 11 and 13 per cent of all charges laid in the Youth Court.

We also know that South Australia continues to maintain one of the lowest young offender rates in the nation, second only to the ACT. Over the past 10 years, there has been a significant and continuing decrease in the youth offender rate. However, this is not the time for complacency. There remains the need to ensure the adequacy of the criminal justice responses to those young people who repeatedly offend, particularly where that offending is serious in nature or results in harm to the community.

Firstly, the bill amends the Young Offenders Act 1993to clarify the statutory principles that should be applied by the Youth Court in sentencing. Section 3 of the Young Offenders Act prescribes the objects and statutory policies that govern the exercise of sentencing powers conferred on the Youth Court. The overarching object of the act is to secure the care, correction and guidance necessary for the development of young offenders into responsible and useful members of the community, and for the proper realisation of their potential. Section 3 also requires that regard be given to various other statutory policies, such as:

the need to protect the community against violent and wrongful acts;

the need to make the youth aware of his or her obligations under the law and of the consequences of breaches of the law; and

the deterrent effect that any proposed sanction may have on the youth.

The bill introduces an additional statutory policy in section 3 of the Young Offenders Act, which makes clear that, when sentencing a youth who has demonstrated a 'pattern of repeated offending', the court should give substantial weight to the impact of that conduct and the need to protect the safety of the community (whether as individuals or in general).

The amendment is intended to ensure that, where a youth has repeatedly engaged in behaviours that result in harm to others or which jeopardise the safety of the community, the impact of that repeated offending and the need to protect the community from further harm are given adequate regard. It is not expected to necessarily result in harsher sentencing where a youth has engaged in low-level offending which does not impact community safety, such as repeated breaches of a curfew condition in a bail agreement.

It will be a matter for the court to determine what constitutes a 'pattern of repeated offending' such that the additional statutory policy should be enlivened. However, to avoid discouraging youths from participating in diversionary pathways offered to them, the bill makes clear that charges dealt with by a police officer or family conference are to be disregarded.

Secondly, the bill amends the recidivist young offender scheme in division 4 of part 3 of the Sentencing Act. The scheme currently provides a mechanism for a court to declare that a youth is a recidivist young offender. Pursuant to section 55(1) of the Sentencing Act, a youth is liable to be declared a recidivist young offender if the youth has been convicted of at least three serious offences or at least two serious sexual offences, committed on separate occasions. A youth who is declared as a recidivist young offender is to be sentenced more harshly in respect of the triggering offence and any further serious offences committed as a youth.

It is now apparent that the current scheme has been of little utility. Only four youths have been declared by the court as recidivist young offenders since the scheme came into operation in 2010, the last being in 2017. The bill amends division 4 of part 3 of the Sentencing Act to ensure that the recidivist young offender scheme operates as intended by capturing youths with extensive criminal histories involving serious offending.

Under the bill, a youth is automatically deemed be a recidivist young offender when the legislative criteria in section 55(1) of the Sentencing Act are met, removing the need for a declaration by a court. The court will retain some discretion and be empowered to refrain from sentencing a recidivist young offender more harshly if the court is satisfied that 'special circumstances' exist and that it is, in all the circumstances, not appropriate that the youth be sentenced as a recidivist young offender.

If special circumstances are established, the harsher sentencing principles in section 55(3) will not apply and that youth may, pursuant to the relevant provisions in the Young Offenders Act, apply to the Training Centre Review Board for conditional release from detention as if they were not a recidivist young offender. The bill also clarifies that, for the purposes of qualifying as a serious repeat young offender or recidivist young offender, a 'conviction' includes a formal finding of guilt by a court or the acceptance of a plea of guilty by a court, whether or not a conviction is recorded.

The Youth Court has previously exercised its discretion not to record a conviction against a youth, even in respect of a serious offence where a penalty of detention was imposed. While the meaning of 'conviction' has been interpreted broadly in some statutory contexts to include a finding of guilt where no conviction is recorded, there may be ambiguity as to its interpretation for the purposes of division 4 of part 3 of the Sentencing Act. The bill puts beyond doubt its intended meaning in this context. It will not affect the exercise of judicial discretion to refrain from recording a conviction when sentencing a youth. It simply ensures that such a decision does not circumvent the intended operation of division 4 of part 3 of the Sentencing Act.

There was some apprehension expressed by stakeholders during consultation on the bill that these changes would bring a large proportion of young offenders within the recidivist young offender scheme, including those who had committed only minor offences considered to be at the lower end. The serious offences listed in section 52 of the Sentencing Act include serious offences like firearms, commercial drug offences, arson, robbery, serious criminal trespass in a place of residence, and offences against a person which carry a maximum penalty of at least five years. It does not capture lower end offences such as property damage, theft or basic assaults.

Further, in order for a conviction to qualify as a serious offence or serious sexual offence for the purposes of the recidivist young offender scheme, the conviction must have resulted in a sentence of detention or imprisonment, which does not include a wholly suspended sentence or a community-based custodial sentence, such as home detention.

Once deemed a recidivist young offender, the person must complete four-fifths of their sentence in detention and not in the community. Section 23(4) of the Young Offenders Act makes clear that a sentence of detention is an option of last resort and may only be utilised where no other penalty would be adequate. For that reason, only young offenders with a history of repeat offending will meet the criteria set out in section 55(1).

The bill also makes related amendments to sections 53(2) and 55(2) of the Sentencing Act to clarify the interaction between the serious repeat young offender and recidivist young offender schemes in certain circumstances, including where a youth has been treated as an adult. A transitional provision in clause 7 of the bill makes clear that the amendments to the Sentencing Act will apply in relation to the sentencing of a youth who is convicted of an offence after the commencement of the bill, regardless of whether the offence was committed before or after that commencement.

Finally, the bill amends the Bail Act to introduce a presumption against bail in circumstances where:

(a) the applicant is a youth who is a recidivist young offender as defined in part 3, division 4 of the Sentencing Act; and

(b) the applicant is taken into custody in relation to a serious offence.

The presumption against bail will apply to youths who are of or above the age of 14 years on the day on which the serious offence was allegedly committed. Consistent with the existing test in section 10A of the Bail Act, the presumption of bail is displaced if the youth establishes the existence of 'special circumstances' justifying their release on bail. A broader review of the Bail Act has been referred to the South Australian Law Reform Institute and will include consideration of whether the Bail Act appropriately deals with young offenders. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Bail Act 1985

3—Amendment of section 10A—Presumption against bail in certain cases

Subclause (1) amends the definition of prescribed applicant in relation to presumption against bail in certain cases to include an applicant taken into custody in relation to a serious offence if the applicant is a youth who is a recidivist young offender.

Subclause (2) inserts definitions of recidivist young offender, serious offence and youth for the purposes of the section.

Part 3—Amendment of Sentencing Act 2017

4—Amendment of section 52—Interpretation

This clause inserts a definition of conviction for the purposes of the Division.

5—Amendment of section 53—Serious repeat offenders

This clause amends section 53 to make it clear that:

the section applies to a youth who is being dealt with as an adult; and

when determining the number of occasions on which a person has committed a particular kind of offence, offences committed by the person as a youth are not to be included unless the youth was dealt with as an adult.

6—Amendment of section 55—Declaration that youth is recidivist young offender

This clause makes amendments to section 55 of the Act to remove the need for a court to declare a youth to be a recidivist young offender and instead make it automatic in certain circumstances (subject to the discretion in subclause (5)).

7—Transitional provision

This clause makes transitional provisions in relation to the amendments in this Part.

Part 4—Amendment of Young Offenders Act 1993

8—Amendment of section 3—Objects and statutory policies

This clause amends section 3 of the Act to provide that, in imposing sanctions on a youth for offending, regard should be had to the deterrent effect any proposed sanction may have on the youth and if the youth has demonstrated a pattern of repeated offending, substantial weight should be given to the impact of that offending and the need to protect the safety of the community (whether as individuals or in general).

9—Amendment of section 4—Interpretation

This clause makes a consequential amendment.

Debate adjourned on motion of Hon. B.R. Hood.