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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (VICTIMS OF CRIME) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 October 2008. Page 698.)

Mrs REDMOND (Heysen) (12:16): I indicate that I will be the lead speaker for the opposition in relation to this bill. It is a bill which is largely similar to one previously presented to this house and supported by us in principle because, of course, as the name might suggest, it aims to improve the lot of victims and enhance their capacity in the court processes to have certain inputs into that process. The original bill (I think from memory) was introduced in about October 2007. It passed, as I said, through this place but, when it reached the other place, certain amendments were moved with which the government was not prepared to agree. The government then withdrew the bill and has now reintroduced it in a somewhat amended form, although, as I said, the main thrust of the bill remains as it was.

The original bill, first of all, gave victims of crime advocates the legal right to make victim impact submissions at the sentencing hearing in cases which resulted in death or total permanent incapacity, basically, where the victim was unable to make such a submission because of the death or the nature of the injury. It also gave the prosecution the ability to obtain and present community impact statements to the court during sentencing submissions so that it could inform the court of the impact of the crimes before the court decided what the appropriate penalty might be; and it contained a couple of other what I would call tidying up amendments. One was to make it clear that victim impact statements, as well as being able to be given in person or via CCTV, could also be given via audio or audiovisual recording.

The fourth main thing—and I am talking just about the main things—which the original bill did was amend the sentencing act so that restitutional orders would be enforceable in the same way as other pecuniary orders. For instance, if you had a debt that was recoverable there are certain processes you could go through, but under the legislation as it was, if you were entitled to the recovery of goods, there was no real mechanism by which one could enforce that recovery. That was the other main issue that was covered by the original bill. As I said, that bill did not proceed, largely because certain amendments were proposed in the Legislative Council but the government was not prepared to accede to those proposed amendments.

I note that the bill now comes back in with some of those proposals included. Whilst I would like to think that it was because the government simply saw the good sense of it, the fact is that I have a strong suspicion that the government really just likes to take the credit where the credit is not due to them but to others.

However, the main points I want to make today largely concern the changes to the bill. As I said, the opposition always supported the thrust of the bill, but in both this and the other place we also raised some of the practical difficulties. We still see that there are practical difficulties, but the Attorney will be pleased to know that we will support the bill. We recognise the government's good intentions in trying to improve the way in which victims are assisted through the legal processes they face, and to that extent we welcome it; however, we see that there could still be some difficulty in terms of the way these things work in practice.

I would like to touch on a number of points, and the first is in relation to victim impact statements. Victim impact statements were put in place basically so that the courts could take notice of the impact on the victim of a particular criminal event, and I think that is important from the point of view of both the victim and the person who perpetrated the offence against the victim. I say that on the basis of some family conference situations I attended during the juvenile justice select committee that looked at the way juveniles are dealt with.

We often have these family conference situations where a young person has pleaded guilty to a medium-range offence—not so light an offence that it only invokes an informal or formal caution, but not so serious offence that they are likely to be put into detention. If a young person has committed such an offence and has pleaded guilty, they can be referred to a family conference. In essence, this involves the person who conducts the conference, the young person themselves, usually a family member (often both parents, for instance, or some other near relative in the case of young indigenous offenders, although not many of them actually end up in the family conferencing system) or members of a kinship group or elders of a particular group. Importantly, the victim can also be at that conference if they want—and victims often find it a really worthwhile process.

I have read a fair bit on, and attended various lectures about, the restorative justice process, and the very concept of restorative justice is the idea that one can in some way restore the position of the victim to what it was prior to the event that caused the distress. It was interesting that in the family conferences I observed—and in certain other conferences in terms of mediation that I have also observed—the victims often felt they had, for instance, been targeted. However, in the course of the conference it transpires that the young offender could not tell where was the house that they broke into or the problem that they caused; they simply acted in an opportunistic way. They may know the general suburb, but in no way did they target the victim.

Now, if victims—and elderly victims in particular—feel that they were targeted, they can come to feel extremely vulnerable, even though there is no basis for that, and one of the great things about processes such as family conferences is that when that victim actually hears the voice of the offender, particularly if the offender is at all contrite and genuine (and they frequently are), the victim actually gets a sense of not having been victimised. They realise that it was just haphazard and opportunistic, and therefore extremely unlikely to happen again. So, there is a real value, in that sense, in a victim being able to be in a situation where they can engage—sometimes through a third party—in any sort of dialogue.

I think it is important for the offenders to understand the impact of their offending on the victim. I say that after watching and, indeed, participating in Children's Court, an area in which I did not specialise, but I was there frequently enough to observe on a number of occasions the things that did finally get through to young people. I remember one young man whom I represented down at Christies Beach. What finally made him turn the corner was when he saw his mother cry over his behaviour.

Often, these young offenders are affected in the same way when they see the distress caused to a victim. It may not be anything terribly dramatic. For instance, it could be that some youngster has been—as I have dealt with—off their face after smoking some dope, and they break into someone's house and take the ice-cream out of the freezer and smear it all over the furniture and the walls. It is a disgusting and completely bizarre thing to do and, when you ask them why they did it (when they are not off their face on dope), they cannot give you any answer. However, once they understand the implications that their actions had on that person—if that person, for instance, was relatively poor, possibly uninsured, having to face a major clean-up, having to face all sorts of difficulties just dealing with the consequences of that offence—it can turn them around.

Another example that springs to mind was where someone had slashed the tyres on a car in the street. To them that was just basically a bit of vandalism that they did not perceive to affect anyone. But they began to understand the real consequences of their offending when confronted with the young mother for whom that car was the only means of transport for her children, and who faced considerable difficulty in transporting her children to school and kindy, and all those sorts of things. She was a sole parent.

There are really very good reasons for both the victim being able to present what impact the crime has had on them and for the perpetrator to understand what that impact has been. I think it can have a significant effect for both sides, so I absolutely support the moves towards making victim impact statements more accessible. However, as I have said, I have some questions about how some of the structures proposed are going to work. What the government has done is admirable: recognising that sometimes there are people who cannot present their own victim impact statements and, to that end, allowing someone else to present the victim impact statement for them. That is fine.

The government wants to have two special sorts of impact statements: a neighbourhood impact statement and a social impact statement. The neighbourhood impact statement is designed to allow a community to voice their concerns. I think during the second reading debate the Attorney referred to an instance where a lot of drug dealing was going on at a particular house in a street. The community was affected by that because of the noise and, potentially, used syringes. There are all sorts of things happening in that neighbourhood. The idea is to give the neighbourhood the chance to say to the court, 'Hey, this is actually having an effect on our neighbourhood, on how safe we feel and even on the value of our homes.' All sorts of things could be affected by that sort of behaviour, and they want to let the court know.

I have some questions about how one does that. My perception is that each individual in the neighbourhood should be entitled, should they wish, to give that sort of statement if they feel affected. Balanced against that, of course, is the problem of everyone in the street wanting to come before the court and take up an inordinate amount of time saying essentially the same thing. So there is some legitimacy in the government's argument in saying that the Commissioner for Victims' Rights can have the capacity, presumably, to convene some sort of a meeting or in some way communicate with the neighbourhood, and that he or his office can, in essence, collate the victim impact statements and combine them into a single statement that can either be presented by him or handed to the prosecution to be put to the court by the prosecution.

I have a couple of things to say about that and the first is that, again, I agree that there is some value in doing a collated statement. Indeed, I was involved in one recently. Members may be aware that I have, for some 27 years, served on the board of the Stirling District Hospital which is a little, incorporated, not-for-profit organisation. We run the local hospital in Stirling, the retirement village behind it and a hostel at Aldgate. I am very proud of that hospital. It is a fabulous 35-bed private hospital that provides a great service for the community. Members of the board do not receive any payment for the work that we do as members of the board, and I am very proud to say that I have done that for 27 years.

Fairly recently, the press reported that a young man by the name of Mark Jenner was employed by our hospital and, within a week of commencing his employment, he began stealing from us. The thefts, which totalled nearly half a million dollars in all, were not discovered for some time. As part of his sentencing process, I was involved (as a member of the board) in the process of giving the prosecutor a statement which basically melded together the comments of all the board members, because we all felt a sense of betrayal and a sense of utter frustration and anger.

Over 27 years I have spent many hundreds of hours working for that hospital, putting in my time gratis, only to have this little ratbag come along and steal money. It was important money because this hospital, like all private hospitals, has to balance many things in terms of the money that comes in. It has to get negotiated contracts with private health insurers and all those sorts of things. So, the loss of $470,000 from that community hospital was something that we wanted to express to the court, so we went through the process, as discussed by the Attorney in his second reading, of melding our various individual comments into a single statement which was then given to the prosecutor to put to the court. We found that relatively satisfying, and most people would be satisfied with that.

However, I think, to some extent, it loses impact by not coming directly from the person who has been affected. Ours was just a financial crime at the end of the day, but more particularly, for someone who has had their home invaded, their personal space taken, or who has been assaulted or in some way very personally affected by the crime, I think that there is, inevitably, a lessening of the impact of the victim impact statement in not having it presented by that person who has been individually affected by the events. That is the first comment I make.

My second comment is simply that, potentially, I think it would be appropriate for someone other than the Victims of Crime Commissioner to present the statement to the court. Whilst I understand the thinking that has led to this situation, it is going to become extraordinarily difficult for the Victims of Crime Commissioner to sufficiently keep a finger on the pulse and be aware of all the circumstances where neighbourhoods might want to make a neighbourhood impact statement. It just strikes me that there is going to be a massive bureaucracy required to deal with that. I think that, perhaps, there is a simpler way to do that by authorising neighbourhoods themselves to get together and do it rather than necessarily doing it via the victim impact statement through the commissioner and then having the commissioner or the prosecutor present it.

As I have said, I think it has a lot more impact if it comes from the person, if only because a real victim is likely to be very emotionally involved—like my young man, who suddenly turned the corner when he found that his mother had started to cry—and that will be communicated to the person who, of course, has to be present. I thank the government for putting in place measures that require the defendant to be there to bear the brunt of what is going on.

To me, the other type of impact statement also presents some problems. Again, I understand the thrust of what the Attorney is aiming to do (and I applaud the thrust of what he is aiming to do), but I wonder how one decides who should make the social impact statement and I wonder whether what we will have is certain people from certain very strongly viewed sections of the community wanting to be up there making social impact statements, and we may end up with a sort of free-for-all.

To some extent, I think that social impact statements almost verge on those areas where judges can simply take judicial notice of the reality of life in the community. I am not one of those who believes that judges do not live in the real world. The judges I know (and these days most of the people in the legal profession seem to be on the bench rather than in the courtroom) are just ordinary members of the community. I know that, in the case of the various judges I run into when I am shopping in Stirling and in my local area, no-one would even know that they are judges; they are just ordinary citizens like the rest of us. I think that, to some extent, social impact statements really are bordering on that area of judicial notice.

The Hon. M.J. Atkinson interjecting:

Mrs REDMOND: Well, as it happens, I ran into His Honour Neil Lowry not long ago. I think he grew up there and lived there for a long time. In any event, our position is that we basically welcome the general thrust of what the government is looking to do in relation to these statements.

I just want to make one more quick point in relation to victim impact statements, and that is that the main point of difference between the opposition's position and the government's position on the previous bill (and it remains our point of difference) is that the government wanted to extend the right to make a victim impact statement to just the cases where the summary offence resulted in death or total permanent incapacity. It is a very difficult definition to meet because you virtually have to be in a permanent vegetative state or totally physically unable to move to meet the definition and to be entitled to make a victim impact statement for summary offences. The government has extended it slightly, at the request of the Minister for Industrial Relations, so that it will now cover certain summary offences under occupational health and safety, and we welcome that.

However, we do still maintain the position that all victims should be able to make a victim impact statement should they wish. Maybe the halfway house is that it be for serious offences and that we put in an appropriate definition of serious offences. However, there would be many, many people who are faced with situations where the offence is not indictable and it is being dealt with as a summary offence but who, nevertheless, feel severely wounded by what has happened to them.

The Hon. M.J. Atkinson: Have you costed this?

Mrs REDMOND: The Attorney asks whether we have costed this. My belief is that the vast majority of victims would not actually take it up and that therefore it would do no harm to allow them the opportunity should they wish. Some sort of time limit could even be put on how long they have to present their victim impact statement. I readily concede that there will be the occasional person who wants to rabbit on for an hour and a half but, if you say what you have to say in three minutes, I do not think that will unduly delay any court. As I said, our view remains that it should be broader than what the government has said. However, we do support the extension to the industrial matters.

I welcome the fact that the government has put in place measures to make sure that the responsible person has to be there; so, the defendant in a normal criminal case will have to be there. One of the other changes the bill has made in relation to victim impact statements is that the government has recognised corporations. What does one do in the case of a corporation?

The government's proposal is that it be a director or some other person satisfactory to the court. Our suggestion is that it be simply some person satisfactory to the court, rather than specifying that it be a director or some other person. It could be that it is an occupational health and safety officer or anyone else, but I do not think we are very far apart on that.

We welcome the notion that, just as an individual criminal should have to be present (except in exceptional circumstances) and hear the victim impact statement, so too should corporate offenders be present to hear the consequences in cases where there is to be a victim impact statement.

Many years ago, I acted in an industrial case where the young partner and son of a young man were left in a very difficult situation after an industrial accident in which this man's shirt had got caught in a piece of machinery and he was strangled. It was a terrible case and his partner was left in very difficult circumstances. I wish that in those days this sort of legislation had been there so that the people who were responsible for not managing safety on that worksite not only could have received the fine that they eventually received but also understood the impact of what they did to this young woman and child and the consequences of their failure to maintain safety.

The next matter I wanted to touch on is the issue of the victim's right to make submissions regarding the sentence. I am pleased that the government seems to have accepted, in essence, the argument that was put in the Legislative Council that making submissions (while not being able to define what the sentence should be and what might be appropriate) will not impede justice in any way. I think the Attorney-General pointed out in his second reading explanation on this new bill that it would pretty much have the same status as the submissions made by the prosecution and the defence representatives, so the victim can put up a submission as to what they consider.

I was interested that the Director of Public Prosecutions appeared to suggest in a radio interview that prosecutors did not make submissions on penalty, and I do not know whether that is really the case—

The Hon. M.J. Atkinson: They don't specify a term of imprisonment.

Mrs REDMOND: —in the sense that, as the Attorney says, they do not specify a term of imprisonment but, in my experience in courts, generally, the prosecutor would make a submission to this extent: he would say, 'Your Honour, this is an offence at the serious end of the spectrum and, for that reason, in our view, a suspended sentence is not appropriate in the circumstance.'

The prosecutor might even invite the court to look at imposing the maximum sentence without actually specifying the precise level, just as the defence will put up its submission on why it is a case for a suspended sentence. I welcome the fact that the government has, in fact, decided that it can accede to the proposal, which I think was put by the Hon. John Darley in the other place, but I am not absolutely positive about that.

I do want to clarify a point with the Attorney, and so I ask the Attorney to make a particular note so that he can address this in his response to the second reading, and that might save us a bit of time rather than having to deal with everything in committee. There is a particular provision to deal with a suggestion by the Director of Public Prosecutions for situations where the defendant is found either unfit to stand trial or not guilty by reason of mental impairment.

My understanding of what was said by the Attorney in his second reading explanation was that the Director of Public Prosecutions suggested that a victim in that case should have the right to make a victim impact statement to the court even though no one had been convicted of the crime. I quote from the Attorney's second reading explanation here, where he said that he was of the view that:

...there is only benefit in allowing the elocution of a victim impact statement where there is some prospect that the defendant/accused will understand it to an appreciable degree.

I agree with that reasoning. There seems little point in having a victim impact statement in a case where the person is unfit to stand trial or is not guilty by reason of mental impairment. I want to clarify what exactly is the government's position, and I was not able to pick it up from the reading of the bill or the second reading. I notice in the second reading report that that suggestion from the Director of Public Prosecutions appeared under, I think, a heading of 'Additional government amendments'.

It struck me that, in the second reading explanation, it appeared as an additional government amendment. It then discussed the fact that the DPP wanted the right for the victim to make a victim impact statement to the court, but the Attorney says that there is no point unless they are capable, and the court has clearly found them not capable. So, I was puzzled as to the government's position and what, if any, amendment was dealing with it and what was the ultimate outcome because, at the end of the day, if someone is incapable of standing trial or is found not guilty by reason of mental impairment, then who is the victim impact statement made to?

What is the point of making it to the court? Whilst it might be very nice for the court to understand the impact for the victim, and there may be some degree of benefit for the victim in being able to actually speak about what the impact was, the court will not be issuing a penalty. Therefore, where does that leave the victim impact statement? We discussed this at some considerable length and thought that maybe the place for a victim impact statement in those circumstances might be in the course of—if there is one—the compensation claim under victims of crime legislation.

Of course, one can have a compensation claim under that legislation even though there is no offender; and, equally, if there is an offender who is known but who cannot be convicted, there is no impediment to someone bringing a claim for compensation. As I said, I am not absolutely clear on what the government is saying it intends to do or change in order to address what the DPP raised, but it seems to us that, depending on the government's position, if you have a situation where a person has a mental impairment or is unfit to stand trial for whatever reason (so no-one is convicted), maybe in that case the victim should be directed to the opportunity to make such a submission in terms of the claim for compensation. I invite the Attorney to consider that as a possible option. Equally, I ask the Attorney for a little more explanation, because I looked at the bill and could not find exactly what the government intends to do even though it said 'additional government amendments'.

The next topic I want to cover in relation to this bill is that of the amendment to the defamation law. There appears to be one particular prisoner in this state who takes up more of this chamber's time than any other prisoner. The amendment—

The Hon. M.J. Atkinson: I think there would be a pretty tight contest on that.

Mrs REDMOND: There could be. In terms of specific legislation directed at a particular prisoner, as I understand it, this particular amendment is directed specifically at a situation where (again, the Attorney set it out in his second reading explanation) we have a person who has been sentenced for the murder of his former wife's partner. He comes up to apply for parole. The former wife, understandably, is notified in accordance with the various requirements, and, having been notified, she then makes submissions to the Parole Board. The Parole Board gives him a chance to respond to the submissions, and in so doing discloses not only its thinking but what she has said to it. That amounts to publication for the purposes of defamation law. He then launches a defamation action against her for what she said to the Parole Board about him in that hearing. My recollection is that that has failed in the first instance but there remains the possibility that he may appeal that decision, and given—

The Hon. M.J. Atkinson: He'd be out of time.

Mrs REDMOND: Some things are never out of time, Attorney. Given the propensity of this person to try to litigate all sorts of things, it is clearly an issue with which we should deal. I am happy to indicate that we favour the proposal that the Attorney has suggested; that is, that we slightly amend our now uniform defamation law so that we will no longer be entirely uniform (this might be a very useful precedent for other circumstances) with everyone else around the country (although I understand that at least New South Wales has amended its defamation law to provide that there are certain things which will be exempt) and will exempt in particular the disclosure of this information, so that when the person in question next applies for parole his former wife will be able to make full and frank submissions to the Parole Board which, no doubt, will place upon them what weight it considers appropriate. I do not know whether the bill goes so far as to say that the Parole Board is not obliged to disclose that to him but, in any event, the effect of the bill is that he will not have any right to bring an action in defamation because it will be exempt as having come under the blanket of absolute privilege. That seems to us to be a sensible thing.

I note in discussion across the chamber, even whilst I have been talking, that the Attorney has indicated that regarding the appeal possibility, to which he referred in his second reading explanation, the time has now expired, because the other question I was going to ask was whether there was any need for any retrospectivity of the operation of this amendment. Provided the Attorney is satisfied that he cannot overcome time expiry, for whatever reason, if the appeal period has expired then perhaps that question does not have to be addressed. I would note, however, for the Attorney, that I once had to bring into play an action which was, I think, 16 years out of time, and we got up. So, it can be done, but one has to have some fairly good reasons.

The next thing that I want to touch on in terms of the changes in this legislation is quite straightforward. It is the extension of grief and funeral payments, which are minimal in any event. They are in no way a level of compensation, but there is provision that, if you have a family member who is subject to homicide—and 'homicide' is defined to include murder and manslaughter, because manslaughter could so frequently—

The Hon. M.J. Atkinson: 'Subject to homicide'? Do you mean killed?

Mrs REDMOND: Yes, but homicide being technical in terms of the definition because it includes both murder and manslaughter but notably, and hence the amendment, it does not include death by criminal neglect, and that is just as surely killed. Hence the use of the word 'homicide' in a quite specific sense.

Indeed, the government's proposal arises out of an actual circumstance where a fairly young baby was killed by the criminal neglect of the mother and/or her boyfriend. In that case the father was unable to access this quite minimal amount, which would otherwise have been accessible had the offenders been convicted of either murder or manslaughter, but because they were convicted of criminal neglect resulting in the death of this little baby the normal provisions did not apply.

In passing, the house may recall that many years ago there was a balloon accident outside Alice Springs in which one cowboy hot air balloon pilot was not keeping the appropriate look out. There were two balloons in close proximity. Because of the nature of a balloon, if you are in the basket you cannot see above you, so the rule of ballooning is that the upper balloon always has to keep a lookout for whatever is below. The upper balloon had the cowboy pilot and it actually slammed into the lower balloon. There were, I think, 13 people on board. One can only imagine their horror, because the balloon was shredded. The balloon took nearly one minute to fall to earth, and all 13 people on board were killed instantly.

The only reason I am raising this at the moment is because of the curiosity that, because everyone was instantly killed and because the people who could afford to go on a balloon flight were either older people who had no dependants or young people, backpackers or whatever, who did not yet have dependants, the claims for most of the families were restricted to this part that we are talking about: the claim for grief and funeral expenses. I note that the time is rapidly approaching 1 o'clock. I seek leave to continue my remarks.

Leave granted; debate adjourned.


[Sitting suspended from 13:00 to 14:00]


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