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House of Assembly - Fifty-First Parliament, Second Session (51-2)
2008-04-03 Daily Xml
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CRIMINAL LAW (SENTENCING) (VICTIMS OF CRIME) AMENDMENT BILL

Final Stages

Consideration in committee of the Legislative Council’s amendments.

Amendment No. 1:

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

That the Legislative Council's amendment No. 1 be disagreed to.

The government bill extends all general rights to make a victim impact statement that exists now only for indictable offences to what the bill calls 'prescribed summary offences'. In the government bill, these will be confined to any summary offence that results in the death of a victim or that causes total incapacity. 'Total incapacity' is defined as permanently, physically or mentally incapable of independent function. This is then a limited exception to the indictable rule. It is limited because the superior courts may have the luxury of time to allow these extended rights but summary courts do not.

The exigencies of the business of the Magistrates Court and the need to deal with a list in an expedient manner means that business cannot be interrupted or delayed except at great disruption to the summary dispensation of justice. That is what summary courts are for: to be summary.

The practical reason for the election policy that the bill proposes to fulfil is that sometimes a defendant will plead down to a summary offence where there has been an outstanding charge of cause death by dangerous driving or something similar. There are not many of these and the exception can be justified on balance of the harm caused and the practical delivery of speedy justice.

This amendment—this is the Darley amendment—extends the exception to all cases where the victim has suffered serious injury or what used to be called, in the old language, grievous bodily harm. The result of this will be that all the panoply of the victim impact statement process will be applicable in any case where the offence has resulted in:

(a) harm that endangers or is likely to endanger a person's life; or

(b) harm that consists of, or is likely to result in loss of, or serious and protracted impairment of, a part of the body or a physical or mental function; or

(c) harm that consists of, or is likely to result in, serious disfigurement.

This amendment should be opposed. It does not respect the balance between, on the one hand, extreme damage to a victim who happens to have turned up in the Magistrates Court and, on the other hand, the necessity for the delivery of summary justice in a summary court. There will be many of these cases. The Office of Crimes Statistics has provided this table. There will be between 100 and 200 such cases per year. I seek leave to insert the document in Hansard. It is purely statistical.

Leave granted.

Defendant Convictions

Assault—GBH Major Assault—Other
2003 58 43 101
2004 40 39 79
2005 58 40 98
2006 67 68 135
2007 38 167 205
261 357 618


The Hon. M.J. ATKINSON: I should explain that on 14 May 2006 section 23 of the Criminal Law Consolidation Act, 'inflict grievous bodily harm on a person', was replaced by the new Criminal Law Consolidation Act, section 24(1), 'intentionally cause harm to another'. The old law is reported under the offence, 'assault GBH', the new law under 'major assault other'. The new law would also include some offences that would have been charged under the old less serious law of 'commit assault occasioning actual bodily harm', which ceased to exist on 14 May 2006. In addition, there will be plenty of scope for the aggrieved victim of any bar fight to argue that his case falls within the scope of this when the prosecutor thinks not.

Indeed, one can well see that it would not be uncommon for both sides of a bar brawl or a domestic fight to argue that this applied to them both. This kind of complicating scenario may be multiplied. The amendment is not workable, particularly when the court system is under stress and under pressure to deal with delays and case loads. I know that the member for Heysen is often sweetly reasonable during these kind of deliberations—

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: Thank you, 'these kinds of deliberations'. The member for Heysen is correct and I am in error.

An honourable member interjecting:

The Hon. M.J. ATKINSON: Yes; I got it all out of my system yesterday. I know that, with her long experience in courts of summary jurisdiction and, indeed, all courts, the member for Heysen can bring to bear on this deliberation the experience of her vocation as a suburban lawyer. Therefore, I would have thought the first thing the shadow attorney-general would have done when faced with the Darley amendment, upping the ante Xenophon-style (they get a concession; they take an inch, they want a yard), would have been to talk to the Chief Magistrate and ask what the Chief Magistrate and the magistrates think of it. I can arrange a meeting.

Mrs REDMOND: I do thank the Attorney for his kind words about my sweet disposition of which he is all too well aware. As the Attorney has indicated, this first amendment, the Darley amendment, seeks to extend the scope of the serious harm, and therefore the people who are able to get the benefit of this enlarged provision for victims of crime extends to all cases where victims suffer serious injury or grievous bodily harm. Indeed, the Attorney read out the actual provision as proposed by the amendment; but as I understand it the government's opposition is based on the proposition that some of the cases captured by this amendment would inevitably fall within the jurisdiction of courts of summary jurisdiction, which are designed, of course, to dispense justice summarily.

I make no argument with the proposition put by the Attorney in that regard. Clearly summary courts are adept at dealing—on some occasions in a morning—with 120 different cases, as I have seen happen in the Murray Bridge Magistrates Court on numerous occasions—after New Year's Eve celebrations, for instance. However, I think it would be stretching a point to suggest that summary courts are always so adept. More importantly, I think it would be difficult for the average punter, the average victim of a crime, to understand that sometimes an injury of a certain seriousness will be captured within the government's bill and therefore the person will get the benefit of the enlarged arrangements for the determination of the impact of the injury on their lives, and on other occasions the same or a very similar level of injury will not result in their getting the benefit of this bill.

I am therefore at something of a loss to understand the government's position. Furthermore, the Darley amendment is in fact something very similar to what was proposed by the previous member in the upper house, who was the Nick Xenophon person. However, we now have two other people who are not Nick Xenophon but who are Nick Xenophon people in the upper house.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: He is?

The Hon. M.J. Atkinson: He is even in Nick's cubby hole with Nick's staff.

Mrs REDMOND: As I said, previously we supported this and we continue to support it. I hear what the Attorney says about the need for summary justice. I simply make the point that it seems to me that victims of crime are unlikely to understand that distinction and are really likely to seek only that they be treated equally as victims of crime depending on their level of injury rather than depending on whether their matter happens to fall within the jurisdiction of a court of summary jurisdiction or a higher court. I indicate therefore that the opposition will be, as it did in the other place, supporting the Darley amendment.

Motion carried.

Amendment No. 2:

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

That the Legislative Council's amendment No. 2 be disagreed to.

The effect of this amendment is that if any court is intending to impose a sentence that involves community service in any form and the court is informed that the victim wants the community service to be performed for the benefit of the victim, or of a kind requested by the victim, the court should do it or give reasons why not. Further, if such an order is made, community corrections has to consult with the victim before issuing 'any directions requiring the person to perform projects or tasks'. Interpreted literally—and there seems no other way of doing it—it seems that the community corrections officer would have to consult with the victim before directing the offender whether to pick up that kind of litter or paint that colour or whatever detail might arise on the spot.

The amendment should be opposed, but not only for that reason. First, in essence, it seeks to make the victim the community corrections officer or at least give the power of veto. Victim-dictated sanctions are a bad idea. Although restorative justice does have its place (particularly in the Young Offenders Act) the imposition of it in this one-off stand-alone amendment is inadvisable. If we are to have adult restorative justice, let us do it properly. For example, proper restorative justice gives the offender a say as well. How much of a say? Well, that should be worked out properly.

Secondly, the system is unworkable. The imposition of community service as a punishment depends, in the first place, on the consent of the offender. If the offender is not prepared to do it, then it will not work. I repeat the comment made above about the need to engage the offender in restorative justice.

Thirdly, the system is unworkable in another sense, too. This is most likely to arise in a magistrates court. The court will be running through its cases. It will form an intention to impose community service only as it hears submissions. What if the victim is not there? Does the court adjourn the matter while the victim is found and consulted? What are the obligations of police prosecutors: to divine the possibilities in advance; to take the opinion of all victims just in case?

Fourthly, all of this may well mean that the use of community service as a punishment will decline in favour of other penalties. This is most undesirable. We should be encouraging the use of community service as a punishment, not making it harder to do or putting obstacles in its way.

Fifthly, I doubt whether Correctional Services has ever been consulted about the implications from its point of view. I suspect that Corrections will have industrial concerns about victims giving directions to their officers; insurance problems about various places of community service—namely, the victim's home or, perhaps, the victim's roof; practical problems about not putting offenders into designated programs; and resources issues because supervisors will be scattered over many individual work sites, rather than—

Mr Hanna interjecting:

The Hon. M.J. ATKINSON: —yes—rather than concentrated on joint projects. It's not going to be my day with the member for Mitchell.

Mrs Redmond interjecting:

The Hon. M.J. ATKINSON: There was a time—before he got into parliament. There are thousands of hours of community service ordered each year. If the department was required to consult with victims in the circumstances suggested in the proposal, it would be time-consuming and create delays in work being completed. It may well be unworkable. The resource implications for the department, should this proposal proceed, may well be great.


[Sitting extended beyond 5:00 on motion of Hon. M.J. Atkinson]


Mr HANNA: I rise briefly to point out that the Attorney-General is taking a fairly uncharitable interpretation of the intent of the amendment which has come down from the upper house. It is quite clear that the mover of this amendment was seeking to involve victims in the process, but not in a way that absolutely determines the type of community service the offender must undergo; it is simply to give the victim a say.

I would have thought that that is consistent with the philosophy upheld by this government over a period of years. So, it does seem a little unfair that such a hard line is being taken. If there needs to be finetuning of the wording because of technical difficulties, workplace issues or whatever, then that is something which the Attorney-General could do in a conference between the houses.

Mrs REDMOND: Like the member for Mitchell I think the government is taking a somewhat unkind view of the proposed amendment. My understanding is that in the upper house we explored this at some length. I had some concerns about the nature of the issues raised by the Attorney; that no doubt people would come to court expecting that perhaps work could be done on their own house. I do not believe that is ever going to be the way community service orders will operate; it will always be on some sort of public property—it will not be actually fixing those things.

Looking at the wording of the proposed amendment, that if a court intends to impose a sentence of community service on a person in respect of an offence or to include a condition requiring the performance of community service in a bond imposed on a person in respect of an offence, and the court is advised by a victim (or by the prosecution on behalf of the victim) that the victim would like the defendant to be required to perform community service in accordance with the section, the court may order that the community service (or specified number of hours of community service) consist of projects or tasks either for the benefit of the victim or of a kind requested by them.

I think the wording of that section is sufficiently broad to ensure that the discretion remains with the court, that the court will not be delayed—as opposed to what the Attorney suggested which was that it might be delayed while it waits for the victim to make their submission—and that the court will be aware of those things before they occur. Therefore, there is no realistic prospect of delay resulting from the inclusion of the assessment. But I do not think it is unreasonable for a court to be enabled and I see this section as simply an enabling section providing for a court to be enabled to listen to what the victim thinks would be an appropriate way for the offender to perform their community service that would maximise the redress given to the community or to the victim in particular. So, the opposition, in fact, favours this amendment and will lend its support to it.

Motion carried.

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