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House of Assembly - Fifty-First Parliament, Second Session (51-2)
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CRIMINAL LAW (SENTENCING) (ABOLITION OF SUSPENDED SENTENCES) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2007. Page 936.)

The Hon. R.B. SUCH (Fisher) (10:30): I support this bill, which is a sensible proposal by the member for Mitchell. It does raise the issue of how our criminal justice system is functioning at present. I have to say that I do not believe it is functioning as well as it could or should. Obviously, it does not have much of a deterrent impact on would-be offenders.

I have said publicly on many occasions that nearly every night in Adelaide there are serious breaches of the criminal law. Last night or the night before, whether one is talking about arson, car chases, ramming police cars or whatever, Adelaide is not the place it should be. We have an ageing population, and we know from statistics and data analysis that, in general, breaches of the criminal law are more likely to be committed by the younger section of the population rather than the older section. In Adelaide there should be less crime than is currently the case.

Within the wider community—and I believe I am in touch with my electorate—the feeling is that we do not have a system of criminal justice operating in the state. The system favours the criminal. I do not support capital punishment and other drastic punishments. However, I do support genuine penalties for breaches of the law. I would be happy to see people who commit premeditated brutal killings stay in prison for the term of their natural life. I do not have any problem at all with detaining someone for the term of their natural life if they commit a brutal vicious killing, particularly if it is premeditated.

I saw a television program on Channel 9 on Tuesday night. The show is hosted by Steve Liebmann and it replays terrible crimes committed in Australia. The program on Tuesday night involved a Western Australia situation, where a guy, after consuming drugs and alcohol and being refused sex by a single mother at a party, at 2.30 in the morning brutally killed her teenage son with a tomahawk, then brutally killed her and raped her after he had killed her, and then killed the two daughters aged four and six.

That piece of whatever you want to call him will be eligible for parole in 2013. People will say, 'That is not South Australia.' I am not sure that Western Australia is much different from South Australia and the other states of Australia. We have a wishy-washy approach to people who commit horrendous crimes. In fact, the injuries inflicted by that particular individual were so severe that the Supreme Court judge put a permanent stay on any publication depicting the injuries—although I have a strong suspicion as to what he did with the tomahawk.

I do not believe in South Australia we have it right, either. I do not consider for a moment that someone who butchered four innocent people, simply because the mother refused sexual intercourse, should ever be released. I do not have any problem with that. That person should be detained behind bars for the term of his natural life. What needs to happen—and I keep coming back to this—is that we have to try to steer people away from getting into trouble in the first place; and there needs to be more emphasis on that. A lot of people who end up committing serious crimes have been subjected to horrendous personal incidents. That does not justify their behaviour, but serious rejection, for example, of a child by a parent or parents can have long-term consequences. Sadly, we live in a bizarre society.

Last night while travelling home on the train I talked to a psychologist who works for a commonwealth department. He is dealing with a situation where a family member has been having sexual intercourse with a wombat.

What sort of individuals do we have in our society? He is trying to sort out the problems associated with the family. We have some very sick people out there. I do not see any justification for that sort of behaviour. What we need is a lot more emphasis on keeping people out of the criminal justice system. We have heard a lot about the so-called gang of Aboriginal people getting around town. Not all the law-breakers are Aboriginal—most of them are not, but Aboriginal people are overrepresented in the statistics. A lot of those people cannot read or write. They are unemployable; they have little or no chance of getting a job.

As I have said in this place, I try to keep in contact with what is happening around the whole state, and there are still Aboriginal kids in places such as Murray Bridge who do not go to school, because the system is weak. We do not want to intervene or get too tough on people whose children are not attending school. Why is it that we can go to any of these places on a school day and see kids not at school? They do not have a hope in hell of getting a decent career, getting employment, because essentially they are going to be illiterate and unable to do basic maths.

We need to intervene early. We know that from cases such as the one involving Martin Bryant, the Truro murderer, and others. All the warning signs are there early on in primary school and junior primary school. What does the system do about it? Very little, and some of those people go on to be vicious killers because the system does not deal with the issue. Then we get people released on bail or people out on parole committing serious offences. Our system is soft and ineffective. I do not like to criticise them, but I think that when the perpetrator fronts court with their rent-a-suit and their Sunday-school image, judges and magistrates tend to be more sympathetic to them than to the victim.

I know the present government is doing a lot to assist victims of crime, and I commend it for that. However, you have a system where people use every legal avenue to minimise the impact of a proper sentence upon them. I will keep saying it, but I think the government needs to get a handle on this issue, because if it does not it will bite it at the next state election. The present government used the situation skilfully in the lead-up to 2002, but the wheel will turn if it does not get a handle on what is happening in the wider community.

This is a big sleeper issue out there, and the community is sick and tired of what is going on. Look at the vandalism occurring: beautiful statues were done of the work of Mem Fox (Possum Magic) in Thalassa Park, Aberfoyle Park. Other authors were commemorated in wonderful sculptures, and what has happened? A few weeks ago they were vandalised—smashed to bits already. Members of the community know what happens; they see this behaviour going on and they see no effective action and consequence for those who offend. The Coromandel railway station used to have glass panels—now all smashed; $11,000 worth smashed all in one night. Now we have mesh.

The system is not working the way it should. I do not say it is totally the fault of the state government, but what I do say is that it is totally the government's responsibility to do something about it and fix it. We do not have enough places in which to lock people up, and they should not be in a place where it is just a time out. I would put very tough conditions on people. If you do not want to learn, if you do not want to improve your literacy, you will not get the full benefits that accrue to the standard prisoner.

We need to get fair dinkum. I support this measure from the member for Mitchell as part of a package of trying to deal with a system that is very wobbly.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (10:41): Sentencing is not a science: it is an art. It is not a mathematical exercise. The High Court has said that, although some general sentencing standards guide discretion, the human condition of offender and victim is so variable that the sentencing judge must resort ultimately to what has become known as instinctive synthesis, and I refer to Wong v The Queen (2001), AB v The Queen (1998) and Weininger v The Queen (2003). In making these judgments, judges require tools.

These tools may usefully be seen as a range of sentencing options escalating in severity. Section 38 of the Criminal Law (Sentencing) Act contains the option of the suspended sentence. The general nature of the option is common knowledge. The offender is sentenced solemnly to a term of imprisonment and that sentence is then suspended on imposition of a bond with variable conditions. There is a two-stage reasoning process: first, the decision to imprison must be made according to established principles; secondly, the decision must be made not to impose that sentence at once but to suspend it over the head of the offender like Damocles' sword. Suspended sentences were introduced by the Offenders Probation Act Amendment Act (No.2) 1969. It may come as no surprise to members that its introduction was controversial. A crusty conservative magistrate of the day did not like the innovation, and said:

I agree with the view currently prevailing in England that a suspended sentence is really no punishment at all.

We know, of course, that the member for Mitchell does not agree with these views. What the member for Mitchell hopes to achieve counter-intuitively by this bill is fewer people imprisoned in South Australia. The appellate courts did not agree with the magistrate and do not agree. At the time, Chief Justice Bray said:

So, far from being no punishment at all, a suspended sentence is a sentence of imprisonment with all the consequences such a sentence involves on the defendant's record and his future and it is one which can be called automatically into effect on the slightest breach of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, however slight, can hardly be described as no punishment.

Those words were uttered in the case of Elliott v Harris in 1976. As is wellknown, however, the mistaken view that a suspended sentence is really just a slap on the wrist has maintained currency and, in some places, suspended sentences have been repealed. But all is not what it seems.

For example, in New South Wales repeal of the section of the Crimes Act dealing with suspended sentences was recommended by the Criminal Law Committee in 1973. The committee expressed a preference for the common law bond system, which was seen as superior to suspended sentence orders in dealing with first time offenders. In 1974 an amended section 558 of the Crimes Act was intended to be a statutory form of the common law bond. Members should note that this bill does not replace suspended sentences with another alternative. But, in any event, New South Wales reintroduced suspended sentences in 2000, in line with the recommendations made by the New South Wales Law Reform Commission. We all know how the member for Mitchell nags me about what he thinks is the need for a law reform commission in South Australia.

Mr Hanna: Yes, a very good idea.

The Hon. M.J. ATKINSON: 'A very good idea,' he interjects: however, we have law reform commissions in other states and territories and, on this occasion, the member for Mitchell acts in contradiction of the recommendation of the New South Wales Law Reform Commission. He likes law reform commissions if they recommend what he wants.

More recently, New Zealand removed suspended sentences as a sentencing option with the introduction of the Sentencing Act 2002. Again, unlike the bill before the house, this change was made as part of broader reforms to sentencing and parole, including the replacement of periodic detention and community service with a community work order. Tellingly, though, since the abolition of the order and the introduction of the new sentencing legislation, New Zealand has experienced a gradual increase in the proportion of sentences that are custodial—from 8.2 per cent in 2001, to 8.4 per cent in 2002, and 8.6 per cent in 2003. The change from 2002 to 2003 alone represents about an 8 per cent increase in the number of offenders receiving a custodial sentence—from 7,930 in 2002 to 8,540 in 2003. This is a result we know the member for Mitchell does not want as a former member of the Greens party and a life-long left Liberal on criminal law sentencing.

The removal of suspended sentences as a sentencing option is believed to be one factor that may have contributed to this increase. The honourable member proposing this bill has not told us this, nor has he informed the house how he intends the government to pay for the expensive consequences of increased imprisonment. I know of no member of the assembly who is more ad hominem in his attacks on members than the member for Mitchell. England and Wales have introduced—

Mr HANNA: I object to that, Mr Speaker.

The SPEAKER: Order!

Mr HANNA: That is an absolutely false allegation, and the Attorney-General knows it. He should withdraw it.

The SPEAKER: Order! The member will take his seat when I am on my feet, or I will name him straight away. Does the member have a point of order?

Mr HANNA: Yes, my point of order is the insult just directed at me by the Attorney-General.

The SPEAKER: I do not know what the insult was. Are you saying that the member used unparliamentary language?

Mr HANNA: He is alleging that my preferred form of argument is an ad hominem argument.

The SPEAKER: There is no point of order. The member will have an opportunity to respond at the conclusion of the debate. The Attorney-General.

The Hon. M.J. ATKINSON: One thing I love about the member for Mitchell is that he can dish it out but he can never take it. England and Wales have introduced a new form of suspended sentence order under the Criminal Justice Act 2003. It is true that the Victorian Sentencing Advisory Council recommended the abolition of suspended sentences but required them to be phased in as part of a large reform of alternatives to imprisonment, unlike this bill. The council said:

The council's recommendations were not, as many interpreted them, a call for all offenders on suspended sentences to be imprisoned, or an affirmative response to calls for more punitive sentencing. Rather, we sought to find a more creative solution to the problems our consultations uncovered, and to provide a new range of orders that would perform substantially the same function as a suspended sentence and other substitutional sanctions, but that would do so in a different form. We believed then, as we do now, that it is possible to create sentencing orders that 'mean what they say', while also providing courts with a flexible range of orders to enable sentences to be tailored to the offence, the offender, and the purposes of sentencing (whether these are considered to be punishment, deterrence, denunciation, rehabilitation, community protection, or a combination of these purposes).

All of this says that, even if one were to abolish suspended sentences (which I would not), the task is far more complicated and sensitive and thorough than the member for Mitchell's bill.

Time expired.

Mr HANNA (Mitchell) (10:52): The Attorney-General cheapens his argument with ridicule, personal attacks and false allegations. That is not uncommon in the Attorney-General's rebuttal of propositions put by Independent members or the opposition. Nonetheless, when I consider the substantial points that the Attorney-General has made, I appreciate that he has provided a useful survey of interstate jurisdictions. He has provided some additional statistics, but there is nothing there to rebut the points that I made when I proposed this bill.

The fact is that the reasoning process is faulty in general terms when it comes to the way suspended sentences are handed out: it does not satisfy the public. The perception of people walking away without effective punishment is a real one. The Attorney-General has done a good job of representing the views of judges generally, but it really does not address the concerns of the community. I trust that there will be at least substantial support for this proposition. We will test that now.

The house divided on the second reading:

AYES (2)

Hanna, K. (teller) Such, R.B.

NOES (34)

Atkinson, M.J. (teller) Bedford, F.E. Breuer, L.R.
Caica, P. Chapman, V.E. Ciccarello, V.
Conlon, P.F. Evans, I.F. Foley, K.O.
Fox, C.C. Geraghty, R.K. Griffiths, S.P.
Gunn, G.M. Hamilton-Smith, M.L.J. Hill, J.D.
Kenyon, T.R. Kerin, R.G. Key, S.W.
Koutsantonis, T. Lomax-Smith, J.D. Maywald, K.A.
O'Brien, M.F. Penfold, E.M. Pengilly, M.
Piccolo, T. Pisoni, D.G. Portolesi, G.
Rau, J.R. Simmons, L.A. Stevens, L.
Venning, I.H. Weatherill, J.W. White, P.L.
Williams, M.R.

PAIRS (8)

Goldsworthy, M.R. Rann, M.D.
McFetridge, D. Thompson, M.G.
Pederick, A.S. Bignell, L.W.
Redmond, I.M. Rankine, J.M.


Majority of 32 for the ayes.

Second reading thus negatived.

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