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

Second Reading

Adjourned debate on second reading.

(Continued from 24 October 2007. Page 1303.)

Mr GRIFFITHS (Goyder) (15:59): I will make a brief contribution to this bill, which was introduced on 24 October, and I commend the government and the Attorney-General for its introduction. I also commend the shadow minister for the very detailed briefing paper that she provided to us.

I do not have a great knowledge of the law, and I am the first to admit that. Most that I have learnt is from dealing with people and issues and watching television and movies, but the one thing that is obvious to me is that there has to be an opportunity for victims and witnesses to make statements without fear of intimidation, and to actually have the courage to make those statements, first when they lay charges and, secondly, when the case appears in court and they have to actually defend their statements, quite often with the perpetrator of the crime watching them.

It must be very intimidating for those people, so I think that any bill that actually introduces options to give them some degree of confidence in the fact that there will not be that physical intimidation— they can give their impact statements via CCTV or by audiovisual recording—is a great move forward.

I also took particular notice of the community impact statement option, which I understand is being included. Unfortunately, a significant amount of vandalism and malicious destruction occurs across too many parts of our community. It especially affects public buildings and many facilities owned by the community at large. I will briefly recount to members a relatively small incident, but to the people who were affected by it, it was a major issue.

About four months ago, the Maitland Rifle Club, of which I am a patron and event sponsor, was broken into. A week after the break-in, I was shown by devastated club members photos of the utter destruction in that building. It is a jointly owned facility. It is not owned by any one person; it has been built up by generations of people who consider rifle shooting to be a valid recreational sport for them and for other enthusiasts, and they took great pride in what they had.

There were a lot of trophies on display and there were kitchen facilities. They found that the generators had been stolen, the walls had been kicked in, the windows had been smashed, trophies had been stolen, although two days later they were thrown back over the fence. This had a terrible effect on the members of this club, because they took great pride in the place. They intended to hold a prize shoot-off within about three weeks, so they wanted to make sure that they presented their facilities in the best possible way but, after this level of damage, it made it very difficult, but they worked hard and they got things up again.

From a brief reading of the paper and my understanding of the intention of the bill, I consider that it is a positive step forward. It will allow the community at large to have a greater opportunity to ensure that they can give evidence to the proper authorities and that that evidence will be listened to, and that the people who actually perpetrate these crimes will be accountable to some degree.

The great fear in the community at large is that too many people get away with things and that physical intimidation sometimes makes it difficult to have the courage to report crimes. We all see and hear of things sometimes, and we wish that people took different actions, but sometimes it is very hard, because not everybody has the courage to stand up in front of others and state what they have actually seen or heard because of fear for their own personal safety. As I understand it, the introduction of this bill will improve that situation. I think it is a commendable way forward, and I am pleased to offer my support for it.

Mr GOLDSWORTHY (Kavel) (16:03): I, too, am pleased to make a brief contribution on this piece of legislation. I understand that this bill was introduced by the government on 24 October. It extends to circumstances in which victims can have an impact on sentencing along four specific lines. The first gives victims of crime advocates the legal right to make victim impact submissions at the sentencing hearing in cases that result in the death or total permanent incapacity of the victim; that is, in effect, where the victim is unable or unavailable to make such a submission because of death or injury. The second provision amends the legislation to give the prosecution the ability to obtain and present community impact statements during sentencing submissions, informing the court of the impact of the crime on the community.

The third point makes it clear in the legislation that the victim impact statement can be given in person or via CCT (closed-circuit television), audio or audiovisual recording. I will make some comments in general terms on that third point. It is not necessarily related to victim impact statements and the like. My family had an experience some months ago where my daughter was requested to attend court as a witness on a particular case.

It took some time before this whole matter came before the court. It took some 18 months from when the police received the report of the alleged criminal activity to when the matter came before the court. My wife and I, not having heard anything about it, thought that the police were not going to proceed with the prosecution and take the matter to court. We had basically forgotten about it, and so had my daughter, who had put it out of her mind. At the time, it was a traumatic experience for her and some of her school friends.

As I said, we had basically forgotten about it and my daughter had put it out of her mind until, one day out of the blue, the police rang my wife and said that they wanted to continue pursuing the issue and would like my daughter to come into the police station to give a statement and proceed the matter to court. It is difficult for a 14 to 15 year old girl to try to recall specific details of an alleged activity 18 months after the event. To the credit of her and her school friends, they did their very best and the matter was brought before the court.

That brings me to the specific issue I want to raise in relation to how the courts and the police prosecution dealt with the matter. I have to give full credit to the way the woman police prosecutor dealt with the sensitivities of the issue. My daughter was extremely nervous about attending court and giving evidence. The police prosecutor applied to the court and it was agreed that a screen would be set up between the accused and the area where the witness would sit, so that my daughter did not have to look at the accused. A screen was put between her and the accused and all she could see was the defence lawyer, the prosecutor, the magistrate and my wife and I.

I think that is important. I am using that as an example. This legislation is important for victims of crimes. Obviously an accused has to be brought before the court, there has to be a successful prosecution and a person has to be convicted of the crime before a person can be a victim of crime. I believe that this is a worthy step in amending the legislation. I think that the courts are considerate and have some compassion in the way witnesses and also victims are dealt with in the course of the justice system.

I highlight that as an example. My family and I have had nothing to do with the courts or the judiciary system, which is fortunate, apart from that specific example when my daughter was required to attend the court. Making the legislation clear that the victim impact statement can be given via closed-circuit television, audio or audiovisual recording. Obviously that assists the victim in giving their evidence and they do not necessarily have to face the convicted criminal in the court.

There would be cases where, during the course of the trial, the victim has been further traumatised by that process, and they have basically had enough. You often see people on television coming out of the court after being through that process and it has been quite traumatic and they are just happy that it has all been dealt with and is finished, the conviction has been made and the penalty handed down. For them to go through another process of having to give a victim impact statement in front of the convicted criminal would add to the trauma, so I think this is a good measure and I commend the government for making that clear.

The fourth aspect of the bill also amends the sentencing act to make restitution orders, and that is an order that an offender return misappropriated property to the victim or the owner, which is enforceable in the same way as any other pecuniary order, and that obviously makes absolute sense. There has been an indication that the opposition supports this bill, and I have been pleased to make a contribution.

Mr PEDERICK (Hammond) (16:11): I also rise today to make a few comments in regard to the Criminal Law (Sentencing) (Victims of Crime) Amendment Bill. As well as the need to protect the community, sentencing has the combined effect of acting as a general deterrent to would-be criminals and serving as part of the healing process for victims. The safety of the community is the paramount concern and we rely on the knowledge and judgment of the legal professionals of the Full Court in establishing sentencing guidelines with an appropriate range of penalties. Penalties should relate to the seriousness of the offence and take into account the offender's past record and general behaviour when out in the community. Excessive punishments may result from emotional responses. The onus is ultimately on the sentencing judge to balance victim impact statements with penalty guidelines and general sentencing standards while being mindful of community expectations.

Some of the government's reactions to sentencing decisions seem to be less about balance and effect and more about appearances and pandering to public outcry. To argue that the sentence acts as a general deterrent is to accept that citizens are influenced or affected by these decisions. At the same time, acceding to public outcry could be akin to giving in to the screaming child at the supermarket checkout. It encourages the community, or that part of it with a particular interest in the case, to believe they only have to raise a hue and cry and the government will do anything to please them.

The Hon. M.J. Atkinson: I will be pleased to read this out on radio.

Mr PEDERICK: Absolutely. Unfortunately, the government does have a tendency to play to the audience rather than stick to the script. Imagine the chaos if football umpires yielded to the protests from the crowd at a perceived wrong or unjust decision. Often in the discussions prior to sentencing, the defence will suggest all sorts of reasons and extenuating circumstances explaining why someone is not responsible for their own actions and should be shown leniency. The victim's impact statement also can pluck at the heartstrings of all involved. It is not unreasonable to think that both pleas might be overstated, thereby drawing heavily on the uniquely human capacity to make value judgments based on reason.

Declaring a prisoner to be a dangerous offender is a power to be yielded with great care, given this government's propensity to respond to public outcry—which is another power to be exercised carefully, otherwise it might encourage vindictiveness rather than forgiveness among the general community.

Reimbursements of victims' costs incurred in presenting a victim impact statement is a fair request. Avoiding this by having them done through closed circuit TV can reduce the impact and value of that process. It can reduce its effectiveness on the offender, as well as dilute the therapeutic value to the victim. They look for contrition in the face of their tormentor to help them find forgiveness. The value of a face-to-face encounter should not be diminished just to save money. I also acknowledge that some victims will want to use closed-circuit television or audio-visual aids because the last thing they want to do is face the perpetrator of a crime against them and put themselves through more anguish.

Similarly, the requirement for the offender to be present at the reading of victim impact statements seems to me a vital part of the process. It is not easy to switch off and ignore the real effects of your actions if you do not hear them described and see the anguish it causes victims. Further, the requirement to have a response from offenders will also bring the antisocial consequences of their misdemeanours into sharp focus in their mind. By allowing victim impact statements from neighbours and the general community, as well as direct victims, it will acknowledge that there are many who suffer loss of amenity and peace in their community. That suffering is not always obvious, but it is always there. I commend the bill to the house.

Mrs REDMOND (Heysen) (16:16): I rise to support the bill. I indicate that I am the lead speaker for the opposition in relation to this bill. I note that the member for Kavel has given a comprehensive outline of what the bill seeks to do. It is clear that we all are at one or, as the Premier might prefer to say, ad idem in relation to the need for victims to be heard in the court processes.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: I note the Attorney says that the Premier was fairly good today with his Latin except for habeas corpus, although I suspect he referred to interlocutories when he was meaning to refer to interrogatories, but we will leave that for another day in the new year. The Criminal Law (Sentencing) Act already contains provision for the consideration of victim impact statements. Primarily, this bill seeks to expand on the provisions that are already in existence.

Under the current law it is the case that victim impact statements are provided to the trial court. Of course, the trial court is not necessarily always the court which is sentencing the offender. That word has changed so we will now be referring to the sentencing court in terms of where the victim impact statement fits into the system. The current provisions, which appear in section 7A of the Criminal Law (Sentencing) Act, provide for victim impact statements to be given only in the case of indictable offences. In fact, as a result of this change, among other things, prescribed summary offences will be included in the circumstances where a victim impact statement might be used.

In relation to victim impact statements, one of the problems has been that the offender has not necessarily been there when a victim impact statement has been read. I welcome the provisions in this bill which will ensure that, if it is an individual, the individual offender will be present and, if it is a corporate offender, an appropriate representative of that corporate entity will be present in court. So, when the victim impact statement is read they must at least be present.

In some sense, one can always drag a horse to water but one cannot always make it drink, and one cannot force someone to pay attention. However, some judges—in particular Judge Barrett—have been fairly regularly making a point of seeking a response to the victim impact statement from the offender after it has been read.

So I am sure that the consequence of someone deciding that they were not going to listen to a victim impact statement—particularly if they were asked for a response and failed to give a reasonable response—would be that that would be taken into account in the sentencing process as well. I have no doubt about the importance of victims being heard in this way.

Indeed, when we were working on the juvenile justice select committee and taking evidence, it became apparent that, for a lot of the time, victims, particularly victims of break-ins, and so on, felt that they had been particularly targeted, and often through the process of family conferencing one of the benefits of the process was that they came to realise, through direct contact with the victim, that they had not been targeted at all, that their house was chosen not because it had been selected and targeted but because it happened to be the house that was convenient. Most of these crimes were opportunistic, and the young offenders, that we were dealing with, could no sooner find their way back to a house than launch a rocket. They just chose that house because it was there, it was convenient, and the person was often very relieved to find out that they had not, indeed, been targeted.

So, just from that simple example it becomes apparent that victims can often gain a great deal of peace of mind from knowing that their place was not targeted. In saying that, I speak from experience in terms of my lack of peace of mind after I was subjected to several burglaries in my house in Sydney. I reckon it took me a good year after the first time my house was burgled before I felt confident and comfortable coming in my own front door again, and just on a year after I was burgled again, so I spent another year feeling uncomfortable. So I do know from experience just what it is like to be a victim of crime, even though it was not personally directed at me, and I am sure that I would have felt better had I had the experience of having the offender indicate that my house was not being specially targeted.

One of the other interesting little bits that really has not been the subject of much discussion in relation to this bill is a minor change to the procedural provisions which appear at the moment in the Criminal Law (Sentencing) Act at section 6, and the bill adds a new provision. Section 6 provides that:

For the purpose of determining sentence, a court—

(a) is not bound by the rules of evidence; and

(b) may inform itself on matters relevant to the determination as it thinks fit.

What is added to that by virtue of the very first amendment in the bill is a third provision, and it is that the court:

(c) must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.

That is a very familiar phrase. 'Equity, good conscience and substantial merits of the case' is a phrase which generally has been found in the area of administrative law. So there is quite a body of case law that is developed about that phrase and its use, but I do think it is appropriate in areas like this, where we are dealing with victims, to ensure that the sentencing process has sufficient flexibility to enable people to be heard and have their message understood.

I note that a couple of people have already mentioned the fact that there will be able to be evidence by victims via CCTV, audio or audio-visual means, and there are a couple of circumstances, of course, where that may really be in the interests of the victims. If, for instance, they feel very threatened or uncomfortable with the idea of perhaps being confronted by, or even looked at, by someone who has physically attacked them, they may feel much more comfortable in being able to give their evidence in that way. Equally, it may be the case that people find it inconvenient to travel vast distances to attend court in order to give their evidence, and, therefore, there is some element of convenience for them in being able to do it long distance via technology. I will make a couple of comments in relation to that.

I note that the Commissioner for Victims Rights mentioned in his submissions to the government that he had had a number of requests for the costs of attending the court to be borne on behalf of victims. I think there is some legitimacy in that request. As I understand it, at present it is possible for a victim to make a request, and there is some discretionary money available. So that, presumably, Michael O'Connell, the Commissioner for Victims Rights, in an appropriate circumstance, if the victim really did desperately want to come to court, could allow some level of discretionary payment towards the costs of attending court.

As I understand the bill, particularly from the explanation that was given by the officers who briefed me on it—and I thank them for their briefing—the fact is that that particular provision probably already applies at the moment and all that we are doing with this particular part of the bill is clarifying to ensure that there can be no mistake, that it is possible to use CCTV, audio link up, or audiovisual link up.

The DEPUTY SPEAKER: Order! I draw the attention of the camera operator in the gallery to the agreement by which the process is allowed to operate. Only members on their feet may be filmed.

Mrs REDMOND: I will quickly go through the other issues covered by the bill; that is, giving victims of crime advocates the legal right to make victim impact statements and submissions. As I read the bill, it is not absolutely restricted to circumstances where people are simply unable, because of death or injury, to make a statement. The primary direction of the bill is that, where someone has been killed or so significantly injured that they cannot make a statement themselves, a victim impact statement can be made.

Equally, there will be circumstances where someone just feels inadequate to make a statement on their own behalf, but clearly has suffered a significant impact from the criminal activity and, therefore, should be allowed to have a voice other than themselves to take a victim impact statement.

I suspect that there will be a mix of legal practitioners and non-practitioners who will present those sorts of impact statements to courts from time to time. Where possible, my personal view is that it is probably somewhat therapeutic if not cathartic for victims to be able to present their own impact statement. I guess it is a bit like having someone who does not know a person making a speech about them at their funeral. It never has as much impact as if the speech is made by someone who actually knew the deceased. I suspect the same thing applies in relation to victim impact statements.

I remember representing a young man in the Youth Court one day. What turned him around finally was the fact that his mother cried; that was the turning point. He had just gone down a worse and worse path, but eventually, when he saw that he made his mother cry, he realised that it was the wrong path. He did get off it, and was a much improved young person after that. The idea of community impact statements is also, I think, one of some benefit to the community because, at the moment, a victim impact statement is of necessity restricted to the actual individual victim of a crime, whereas we all recognise that some crimes by their very nature impact on neighbourhoods and communities.

Indeed, this bill recognises both of those types of impact and allows for both sorts of victim impact statements to be delivered. There are some circumstances where that can happen, and I note that you can have a neighbourhood impact statement about the effect of the offence or of offences of the same kind on people living or working in the location in which the offence was committed and/or you can have a social impact statement about the effect of the offence or of offences of the same kind in the community generally or particular sections of it.

Generally, whilst the intention is that the court must have that statement read out, provision is made for a court to satisfy itself that it is not necessary to read out a statement because it would be inappropriate or unduly time consuming. I can imagine that, given that these sorts of impact statements might be developed by academics, for instance, about the social impact of certain behaviours, they could be extensive and far too technical and time consuming for a court to take them into account by having them read out. No doubt, the court could still take them into account by the sentencing judge or whoever it might be reading the appropriate information and taking that into account.

The other thing to note about those is that the defendant is entitled to make submissions in relation to the victim impact statement and, whilst I have already mentioned the fact that certain judges already invite the defendant to respond, the potential for a defendant to make submissions is, I think, one where it is really just ensuring that there is procedural fairness basically that both sides get to be heard in relation to the matter.

The last aspect, which is somewhat technical, is the amendment to the sentencing act in relation to restitution orders because, at the moment, if you go to court and get an order for compensation in relation to a wrong that has been done to you by way of a criminal offence, then that compensation is recoverable in the same way as any other pecuniary penalty imposed by a court. But as things stand, if you have a restitution order with a court which is actually ordering the offender to give back whatever it was the offender has taken, there is no potential at the moment for that to be pursued, if that item is destroyed or there is a failure by the defendant to give the item back.

So, it is really correcting a technical inconsistency so that, if there is a restitution order and a subsequent failure to deliver up the appropriate item, then there is to be a mechanism to allow a person (a sheriffs officer or other authorised officer) to go into the premises of the defendant and take the item, if that is what is available. Alternatively, there will be the ability to create a valuation of the item so that, for instance, if the defendant decided to destroy the item before it could be delivered, there would be an ability to get a valuation and turn it into a pecuniary penalty, recoverable the same as any other pecuniary penalty.

I seem to recall that shortly after we had the hoon driving legislation, there was a case down in Mount Gambier of a driver whose car was to be taken and, basically, he destroyed the car before it could be taken. I seem to recall that there was some amendment that was to be passed to overcome that difficulty to ensure that people could not frustrate justice and the justice system by destroying the item before it could be returned in accordance with the court order. I thought, at the time, and I still think that there is probably provision for contempt of court proceedings but that adds a longer and more complicated process, so it seems to me that it is reasonable to amend the act so that it is more straightforward to do what the court intended.

In closing, I indicate that, whilst we support the bill, I think that there is one issue that has not been addressed and that is the issue of the further recommendation of the Commissioner for Victims Rights that I have already mentioned. He said, 'I have had several requests to cover the costs of victims coming to court, to read or listen to their impact statements being read and, in one sense, this CCTV and audiovisual option is just the cheap alternative,' as one of the earlier speakers indicated.

I would encourage judges generally to see what response an offender makes to the victim impact statement because, as I said, whilst you cannot force them to listen, I am sure that they would be minded to listen and to make some sort of appropriate response if it were generally expected that it might have an adverse impact on the way that the judge looks at them in terms of sentencing, if they fail to respond appropriately.

I think that, generally speaking, whilst we need to keep in mind the idea of keeping balance in our justice system, it is a good idea for us to ensure that victims are heard and that the appropriate place for them to be heard, other than as witnesses in the trial, will be in terms of the court having a full understanding of what impact the events have had on the victim in order to assess in part what the appropriate penalty might be, bearing in mind that the court still has to take into account all the other things which it is compelled to do under section 10 of the Criminal Law (Sentencing) Act. With those few words, I conclude my remarks.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs) (16:38): I would like to thank the opposition for its support of this meritorious bill and its contribution. In light of Judge Shaw's sentencing today I am sure the media will find the member for Hammond's remarks most enlightening.

Bill read a second time.

Committee Stage

In committee.

Clause 1 passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. M.J. ATKINSON: I move:

Page 5, line 15—Delete 'provided to' and substitute: made available for inspection by.

In consulting on an earlier draft of the bill, I received a comment from the judges that, with the expansion of the right to give a victim impact statement and an expansion in the types of victim impact statement that can be made, provision should be made to ensure that the offender had the right to make full answer and defence to any assertions made in the statement.

This necessarily involves, among other things, some advance notice of the contents of the statement. As a result, a clause was drafted, now in the bill, that required a copy of the statement to be provided to the offender. After the bill was introduced I received a representation from the Director of Public Prosecutions that this went too far. It is said that some offenders keep these documents as trophies of their handiwork.

There should be a way of balancing the objective of fairness to the offender without compromising the integrity of the victim. This amendment is designed to do that. The effect of the amendment is that the offender, or his or her counsel, can have access to the statement but has no right to a copy of it.

Mrs REDMOND: I appreciate what the Attorney has explained. I do have some hesitation about this amendment, but what I suggest is that perhaps we explore it between the chambers, because, quite frankly, it had not crossed my mind that there might be offenders who would treat a victim impact statement as a trophy. I accept the need to protect the victim from that activity, but I wonder whether there is a way to ensure, for instance, that counsel could have a copy for the purposes of making a response without allowing the offender to have a copy.

It seems to me that whilst having access to something—making something available for inspection—is partly what we want to achieve, given the sorts of victim impact statements and the length of them, the interpretation of that amended section could be such that it places an unreasonable burden on defence counsel either if they have to spend hours taking substantive notes of the victim impact statement or they are unable to get enough time and detail to enable them to make a comprehensive response.

I must admit that until the Attorney gave his explanation I had been thinking it was more or less a technical amendment, but it seems to me that there is a potential problem, where there is no harm to be done by the counsel having a copy of the document, maybe on the proviso that it is not given or copied to the defendant in person, and there could be significant benefits. I know, from previous lengthy discovery processes in various cases, that it is unreasonably burdensome to have to spend days (literally) in someone else's office taking extensive notes on boring documents so that you have a comprehensive note when, in fact, there would be no harm to anybody in copying the document.

If, for instance, you had an extensive victim impact statement, an extensive neighbourhood impact statement and an extensive community impact statement, all of which are now contemplated by this bill in its amended form, it seems to me that there is a potential for an unreasonably burdensome outcome in terms of the practitioner who may be representing the defendant who has, after all, an obligation to ensure that they put the best case that they can on the defendant's behalf.

I wonder whether we might be able to come up with a new form of words between the houses. If the government is not minded to negotiate on the point, it may be that we will move an amendment on the issue when the matter proceeds in the other place in due course. In the meantime, I will not oppose the proposed amendment, but I will encourage members to think a little bit longer about what the potential impact might be of the wording that is now suggested.

The Hon. M.J. ATKINSON: I am happy to take the member for Heysen's comments on board and we will consider them between the houses.

Amendment carried; clause as amended passed.

Clause 8 and title passed.

Bill reported with amendments.

Third Reading

Bill read a third time and passed.

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