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House of Assembly - Fifty-First Parliament, Third Session (51-3)
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STATUTES AMENDMENT (PROPERTY OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 5 February 2009. Page 1448.)

Mr GRIFFITHS (Goyder—Deputy Leader of the Opposition) (17:16): I am acting on behalf of the Leader of the Opposition in the short-term carriage of this bill. I also indicate that the opposition supports the bill and I wish to make some comments. The bill, which was introduced by the Attorney-General on 5 February 2009, seeks to amend sections 84 and 85 of the Criminal Law Consolidation Act 1935 and, specifically, those sections dealing with general criminal damage offences, including arson. In 1986 the act was amended to cover arson offences, with a structured series of offences sorted by three definitions: whether or not the damage was by fire or explosives; whether or not the offence was completed or merely an attempt; and the value of the property damaged or attempted to be damaged.

Since then further amendments have introduced a graduated offence by reference to the value of the property affected. Members of the house would recall that the government separated out and created a new offence for lighting a bushfire on the basis that the monetary value of the loss of a national park, for instance, could not be ascertained for the purpose of an arson offence.

The Model Criminal Code Officers Committee examined the issue of criminal damage and the principles upon which penalties should be determined. Damage to valuable property may be trivial in extent, but the consequences of the damage could be vast and costly. A valuation of the property damage is not necessarily co-extensive with the real seriousness of the offence.

The Model Criminal Code Officers Committee recommended the enactment of a general criminal damage offence with a maximum penalty of imprisonment for some 10 years, which matches the current general theft maximum penalty. The intention is not to have all offences that should be dealt with as major indictable offences:

As with theft, the Summary Procedures Act 1921 should classify offences as summary, minor indictable and major indictable for the purposes of court jurisdiction, and the only sensible way of doing this is by value—as is the case with theft.

There is one aspect of the Attorney-General's explanation which has puzzled the Leader of the Opposition. The Model Criminal Code Officers Committee recommended restricting arson as an offence to setting fire to structures or conveyances. That was its historical and general limit before expansion to the general destruction or damage to a wide and varied range of, for example, crops—and beyond—in the middle of the 19th century. Setting fire, say, to brush fences should not be regarded as arson and punished with a maximum of life imprisonment. Destruction of buildings and conveyances is quite another, much more serious matter and the committee took the view that there was no sense in the provisions about monetary limits and separate penalties for attempts.

It seems that a brush fence is a structure. However, new section 85 provides that a person will be guilty of arson if the person, without unlawful excuse, by fire of explosives, damages property that is a building (defined in section 84) or a motor vehicle (defined in section 5) whether the building or motor vehicle belongs to the offender or another person. The penalty for arson is imprisonment for life.

The new legislation will have the effect that, if the value of the item you blow up is $2, it will be charged on the basis of the $2 value but be referred for sentencing to an appropriate court for the value of the damage caused. Subsections (2) and (3) provide for lesser offences (unnamed, but not arson) with penalties of 10 years: (2) is for damaging another's property being a building or motor vehicle other than by fire or explosives and (3) is for damaging another's property not being a building or motor vehicle but by any means including fire or explosives. Interestingly, the offence of threatening to damage another person's property then follows with three levels of penalty for the offence:

Basic—five years' imprisonment;

Aggravated—seven years' imprisonment; and

Aggravated by a threat to commit arson—15 years' imprisonment.

This creates the curious anomaly that the maximum for 'threaten to kill' is 10 years but the maximum penalty for 'threat to commit arson' is 15 years. With those words, I indicate that the opposition is supportive of the bill and looks forward to its passage through the house.

Mr VENNING (Schubert) (17:22): I want to say a few words in support of this bill. I think that it is very important that we continually upgrade these matters. Over the years, when people have damaged property, there has often been no consideration of the value of the damage they have inflicted. I know that this act has been continually amended for quite some time. I note, too, that in 1986 (four years before I got here) the act was amended to cover arson offences with a structured series of offences sorted by whether or not the—

The Hon. M.J. Atkinson interjecting:

Mr VENNING: Pardon?

The Hon. M.J. Atkinson: I doorknocked Hamley Bridge against you.

Mr VENNING: And I got here in spite of all that.

The Hon. M.J. Atkinson: We now win Hamley Bridge.

Mr VENNING: That is only because I am no longer the member. As I said, the act was amended to cover arson offences with a structured series of offences sorted in accordance with whether or not the offence was committed or merely attempted to be committed, as well as the value of the property damaged or attempted to be damaged.

Nowadays, we have a lot of vandalism that does end up in quite extensive property damage, particularly brush fence fires. Vandals light up these brush fences and, in some instances, end up destroying homes. I also mention bushfires. We have seen the government amend this part of it to take account of the devaluation caused when a person lights a fire deliberately, for example, in the destruction of a national park, because it must have a value so that it can be assessed for damage.

As a landowner, you are always concerned about the big threat (particularly close to harvest time) of being burnt out—and this can be deliberate. I cannot support this bill more, because someone who does not like a particular person, for whatever reason, can destroy a person's livelihood purely by lighting a fire and burning them out. There must be strong disincentives. A criminal damage offence attracts maximum penalties, including imprisonment for 10 years, and I welcome that. I do not think the penalty can be severe enough.

I know what damage from a severe fire can do. In 1950 when I was a boy of five we had a massive fire and we lost everything except the house and the car. Everything was gone and it took some years for us to regroup and get on with it. Those sorts of fires are often seen as accidents. Well, history will probably prove that this fire was not really an accident. It was careless neglect. We had some visitors and one was a smoker. We were into hay in those days and we had a huge chaff factory. The smoker came over to borrow a part off a tractor and everything got burnt; the whole lot went up.

I certainly commend this bill to the house. At times I can be criticised for saying, 'Legislation for the sake of legislation', but, in this instance, I think it is commonsense that we look at these sorts of offences, because society is forever changing. Some people do all sorts of malicious things, such as coining motor cars and pushing over people's motor bikes into the gutter. The member for Morphett has a nice motor car, but you just cannot park these cars on streets anymore because somebody will key or coin it.

These are the sorts of malicious deeds that misguided people do, and they do them for all sorts of reasons. I am pleased that these offences are there. The Attorney might want to include this, but does this include the misuse or the stealing of motor vehicles? In America this is called grand theft—

The Hon. M.J. Atkinson: Grand theft auto.

Mr VENNING: Grand theft auto. I believe that we have been far too soft in this country, and particularly in this state, in relation to these offenders. They do steal motor cars. They smash their way in. In fact, it is worse now: they open the door of the car while the driver is in it. They intimidate the driver—in fact, they throw them out or push them into the car—and drive off in full view of the owner. They then wreck the car and often burn it. I believe that we must have a lot more lenient penalties in relation to these matters.

The Hon. M.J. Atkinson: No, heavier not lenient.

Mr VENNING: Heavier penalties.

The Hon. M.J. Atkinson: Lenient is what you are leaning on.

Mr VENNING: You are right: heavier penalties. For once, the Attorney-General is right. I will give him that. There are so many things right across the community that we can be looking at and putting in place penalties that say, 'Well, hang on, if you're going to do these crazy deeds and cause great inconvenience and hurt to people, we will make you pay for it.' I think, in this instance, that all offences should be dealt with as major indictable offences. As with the offence of theft, the Summary Procedure Act 1921 should classify these offences as summary offences, minor indictable and major indictable, for the purposes of the court jurisdiction, and the only sensible way of doing that is according to the value of the theft.

I will be interested to hear what the Attorney-General has to say about grand theft auto, because in America it is a big crime and it is out of control here. Does that come into this bill? I have not read the fine print to find out. To save me reading it, the Attorney can tell me. We certainly support this bill.

Dr McFETRIDGE (Morphett) (17:28): I rise in support of this bill. I would like to make a few comments. The actual deed is not the big issue, it is the consequences of that deed that really need to be considered when you are looking at property damage or any crime. How can you have a minor assault that imposes a lifetime of mental damage on someone? In this case we are talking about property offences. It may just be a letterbox or someone's fence that is graffitied, but the effect on that person can be absolutely traumatic. We need to make sure that the deterrents are there, and this bill seeks to increase the penalties and, hopefully, deter any person from contemplating perpetrating a property offence.

At Somerton Park just recently there was a lady who lit a series of fires in brush fences. The intention was not to destroy large amounts of property (I think it was more to attract attention to herself; she had some mental health issues), but in one case she destroyed a family home and it had a devastating effect on that family. So, the bill needs to look not only at the intent but also the effect, and that is what this bill does.

We also need to look at the other major aspect of deterring people from committing offences, and that is making sure that they will be caught. I am no criminologist, but I read a report a number of years ago that talked quite expansively about the issue of whether a potential criminal is put off by the penalty or the chance of being caught.

The Hon. M.J. Atkinson: It's the latter.

Dr McFETRIDGE: Absolutely. As the Attorney-General said, it is the latter that puts people off committing crimes; the chance of being caught. After those words from the Attorney-General, I would strongly encourage him to reinstate the local crime prevention funding that was withdrawn a number of years ago.

The Hon. M.J. Atkinson: We have a crime prevention program. We give grants. They have been advertised.

Dr McFETRIDGE: To local government?

The Hon. M.J. Atkinson: Local government can apply.

Dr McFETRIDGE: Local government used to have a crime prevention officer (I know that the City of Holdfast Bay had one), and they had to share it—

The Hon. M.J. Atkinson interjecting:

Dr McFETRIDGE: That is right; as the Attorney-General said, they had to share that money. It worked exceptionally well when it was given to individual councils. I would like to see the government pay more attention to putting in place a system to deter people from committing crimes rather than just ramping up the penalties. However, at the same time, I will not back away from having strong penalties that will at least act as a deterrent. I am not so sure whether they are as effective as crime prevention programs. This bill goes at least some way to trying to cope with the problem of people committing property offences and I support it.

Mrs REDMOND (Heysen—Leader of the Opposition) (17:32): I will not hold the house long on this bill. I understand that in my short absence from the chamber a number of people have already spoken to the bill and indicated the opposition's support for it. It seems to me that it is in fact almost an extension of a bill that we passed some years ago which, again, was very sensible. Members may recall that we had an arson offence, which was referred to, I think, in the second reading on this bill by the Attorney, and the damage caused by arson was based on the value of the property damaged. The government introduced a change (I thank it for that and I acknowledge the benefit of its introduction) and said, 'We are going to have a special category for bushfires, because you cannot easily assess the value of a national park if it is wiped out in a bushfire.'

Similarly, this legislation changes things. Under the old English law way back there were separate offences for every single little thing. If you damaged a house it was one offence, if it was a warehouse it was a different offence, if it was a factory it was a different offence and if it was something else it was another offence again. That was changed, but it was changed to a system that basically said that if you damage something by fire or arson that would be one category of offence: if you damaged something or attempted to damage it that would be a different thing, and then we will look at the value of what you have damaged.

As the Attorney indicated in his second reading, that was an improvement on the previous system but it was still not optimal. I am not sure that we will ever have an optimal system, but it is self-evident that sometimes you could damage something which is relatively minor in cost but which has a massive impact in terms of its consequences.

In the personal injury work that I used to do there were often situations involving industrial matters where something might cost a very small amount to adjust but if it went wrong it could cost a massive amount, in terms of lost production and so on, and I am sure we can all think of examples where that might be the case. I think the Attorney is right to want to adopt—what is it; the model—

The Hon. M.J. Atkinson: Criminal Code Officers Committee recommendation.

Mrs REDMOND: The Model Criminal Code Officers Committee recommendations.

The Hon. M.J. Atkinson: Known as MCCOC.

Mrs REDMOND: I do not think I will say that. The various officers have got together and come up with, I think, a rational approach to this matter. I think it makes more sense to be able to assess the nature of the damage caused rather than simply saying 'the value of the property damaged'. To that extent I think it is an improvement and, therefore, as the lead speaker for the opposition I indicate on behalf of the opposition that we will support the legislation—which I think was introduced by the government in about February this year. So, it has been a fair while coming through, for no apparent reason, but it is probably a good thing that we tidy it up before we end our session this week.

Mrs PENFOLD (Flinders) (17:36): It is appropriate and necessary that our laws be continually brought up to date to take account of changes, whatever those changes might be. Property values, for instance, and money itself change over time. However, the crime of arson should be, as the dictionary definition of arson states, 'the intentional and unlawful burning of a building or other property'.

Brush fences should not be excluded. We have had numerous instances of brush fences being set alight and the fire spreading to buildings and other property, causing great damage. It is the trend nowadays for house blocks to be smaller in size, thus bringing buildings closer together and, where brush fences are built, to have them touching houses. In some developments, brush fencing is set down as a condition of the development. Any of those brush fences that are deliberately set alight pose a great danger to the adjoining houses. We are fortunate that we have had few instances of this type of criminal behaviour.

One such event in Port Lincoln set the house alight, and it was only the quick response of the local fire brigade that saved the building from being gutted. A fire started through the setting alight of a brush fence, then setting a house alight. It could easily have ended in the death of anyone in the house at the time. A fire could grow quickly, as has been recorded with some house fires, endangering the lives of those in a building. We frequently hear stories of families who have got out of burning buildings with nothing but what they were wearing.

An article in The Advertiser on Saturday 16 May stated that it was 'sheer luck' that deliberately lit fence fires had not caused fatalities. I quote from the article as follows:

Only luck has prevented a series of deliberately lit brush-fence fires in the northern and north-eastern suburbs from causing a death.

Five cases of arson on brush fences, including three on one night in March at Golden Grove, have residents unnerved and police on alert. A special operation has been mounted in the area to locate those responsible.

There's little to suggest the fires at Para Hills, Salisbury East and Golden Grove are linked. But until the arsonists are stopped, a tragedy is possible. On March 3, an elderly, bedridden woman was lucky to escape uninjured after a deliberately lit brush-fence fire at her Anika Court, Salisbury East home.

Neighbours extinguished the blaze with garden hoses before firefighters arrived at about 12.40am...At Para Hills, on February 19, a sleeping woman, 72, was 'extremely lucky', police said, to escape unhurt when the fire spread from a brush fence and gutted her Williamson Road home about 2.30am.

Police said her cat alerted the woman...Meanwhile, Golden Grove residents say they are living in fear after a series of brush-fence fires.

Mother-of-two Suheyla Ahmed said she feared for her children's lives when a brush fence burst into flames near her home in Bennett Court. Her husband, Khaled, and neighbours doused the flames but not before it had spread to a shed adjoining the family's car port. The same night, the Metropolitan Fire Service put out two more brush-fence fires in a laneway that runs behind houses off Anne-Marie Court.

We are constantly bombarded with comments about the dire state of the earth through carbon emissions and global warming, yet the only response we can come up with is to remove deliberately lit brush-fence fires from being dealt with as arson, all but preventing people from using brush as fencing. With that proviso, I support the bill.

Mr PEDERICK (Hammond) (17:39): I rise to support the bill. I applaud the heavy penalties that can be meted out, especially as people like myself, who live in a regional area, have witnessed the carnage of bushfires, whether deliberately lit or, as is often the case, lit by lightning. Either way, it can cause a vast amount of damage. If a bushfire is ignited by a lightning strike, that is a part of nature, and that is how this country has been for hundreds of years—areas get burned. However, vandals who light up property, fencing and buildings deserve the highest penalty applicable.

It is distressing to see the damage that thrillseekers do when they light up brush fences, which are very popular for a lot of people not just in the city, but in some regional towns and cities as well. Through thrillseeking, they light up a fence. Brush is not something that is come by easily. A lot of it is harvested from my electorate out in the Mallee. It is a resource that we have to keep sustainable. We have to have a good deterrent, and this bill has that. It has fines and penalties of up to 10 years in gaol to stop people doing these terrible acts.

I will talk about another thing that happens in rural areas. We have seen it in Freeling in recent years, where someone's haysheds have been deliberately lit on several occasions. Hay fires are some of the worst fires to fight, because you cannot really put them out. You just have to pull the stack apart, whether it is in a shed or outside a shed. It ties up CFS and MFS personnel and other volunteers and landowners for days, if not weeks, tackling the blaze, and a major use of resources is needed. Not to lessen the amount of financial and feed damage for the person involved, a lot of these fires happen in major export sheds, which has ramifications right along the way. I certainly support the bill along with the others on this side of the house and hope for its speedy progress.

The Hon. M.J. ATKINSON (Croydon—Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs) (17:43): To respond to the speakers in this debate, I shall begin with the Deputy Leader of the Opposition. It is true that there appears to be the anomaly suggested by him. All that can be said is that this kind of anomaly may be more apparent than real. There are more or less serious examples of each. However, it must be conceded that, as a general proposition, the maximums across the statute book could not withstand careful comparative examination. We concede that.

My response to the second point raised by the member for Goyder is that the government would say in any event that the maximums in each case are enough on their own terms. My response to the third point he raised is that the government does not agree that a structure is a building for these purposes. Section 84(1) covers a structure that is used for residential purposes. A brush fence is not, in our opinion, used for residential purposes. One does not live in a brush fence.

To respond to the member for Schubert, the bill has nothing to do with motor vehicle theft: it has everything to do with motor vehicle damage. The member for Schubert asked, as so many late-night talkback callers do, why we do not have the offence of grand theft auto in Australia. In the life of the government we have increased to 10 years the maximum penalty for theft, and that was roughly in line with recommendations of the Model Criminal Code Officers Committee.

We have also changed the definition of theft in the Criminal Law Consolidation Act to make it easier for the prosecution to prove theft beyond reasonable doubt. It is the common practice of police to charge what the layman would regard as theft of a motor vehicle as illegal use of a motor vehicle. The reason police do that is that it is much easier to prove illegal use of a motor vehicle than it is to prove theft in court. For the police it is less time, fewer witnesses, less hassle to charge illegal use of a motor vehicle, and they do so, and they do so even after we have changed the definition of theft.

I do not quibble with the police's operational independence and their decision in this regard. It is for the police prosecutions how they deploy their resources. All I can say to the member for Schubert is that we have made it easier for police and, indeed, the DPP to charge theft instead of illegal use of a motor vehicle and to make that charge stick with a 10 year maximum imprisonment penalty. I do not believe that we can usefully do more. To try to compel the police to charge theft rather than illegal use of a motor vehicle would, I think, be an unfortunate interference in their operational independence.

I was mildly surprised to hear the member for Hammond calling for increased penalties, calling for a tough law and order regime in the course of this debate, calling for condign punishment. Well, the member for Hammond has not been here long, but I do use a quote from him in my standard form letter to people calling for tougher penalties—and it is on Hansard, and I hope it can be delivered to me before I sit down—where he says that people calling for tougher penalties in our criminal law are like children crying at a supermarket, demanding increased penalties, who should not be rewarded with the granting of their wish.

I am sure that if Hansard is searched using the term 'crying' or 'supermarket', they will find the quote. I find it a very good quote to send to constituents and, indeed, to all who write to the Attorney-General to illustrate the tremendous resistance we have in the Liberal opposition to increasing penalties under the Criminal Law Consolidation Act and the Summary Offences Act. And, of course, it makes an outstanding companion quote with the Leader of the Opposition's quote that had she been Attorney-General at the time of the Paul Habib v Nemer case, she would not have directed an appeal against that on the grounds of manifest inadequacy.

I am glad to have the support of the Leader of the Opposition and the member for Hammond today, but I will continue to use their quotes in illustrating to the public of South Australia the difference between the government's policies and the policies of the Liberal opposition. But, it is good to have them with us on this occasion. The answer to the member for Schubert's question is: grand theft auto—no chance of introducing it in South Australia because the Leader of the Opposition is opposed to it on principle because it violates her notions of the separation of power of procedural fairness of the independence of the various organs of the justice system.

Mrs Redmond: When has that ever held you back?

The Hon. M.J. ATKINSON: The member for Heysen interjects, 'When has that ever held you back?' It has many a time. So, the answer to the member for Schubert is that there is no chance of getting grand theft auto through the South Australian parliament because the Liberal Party would join together with its natural allies on the criminal justice debate—namely, the Democrats and the Greens—to prevent the passage of such a bill. So, there you have it, sir: an answer to each of the questions raised in the second reading.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 5 passed.

Clause 6.

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

Page 3—

Line 7 [inserted section 85(1)(a)]—Delete 'the'

Line 9 [inserted section 85(1)(b)]—Delete 'the'

Line 14 [inserted section 85(2)(a)]—Delete 'the'

Line 16 [inserted section 85(2)b)]—Delete 'the'

Line 21 [inserted section 85(3)(a)]—Delete 'the'

Line 23 [inserted section 85(3)(b)]—Delete 'the'

These amendments are all the same and remove the definite article, 'the', from offences in the bill. It is possibly the influence of a Yorkshireman or the Slavic people who work in my ministerial office—is bill, is good.

The amendments all have the same effect. The offences refer to intending to do damage to 'the' property throughout. After some consideration, it has been decided that this is too specific. If Victor Vandal throws a brick at a house intending to hit a window, it should not matter which window he actually hits or whether he hits a car instead. The principle is right: of course it should not matter. There is sufficient authority for the proposition that, even with this wording, it does not matter; even so, it is to be noted that the current offences do not use the definite article, and it is better to be safe than sorry; hence, the proposed amendments. I commend them to committee.

Mrs REDMOND: I am just quickly getting my head around what the Attorney said. At the moment, I note that it provides that a person who, without lawful excuse, damages property, intending to damage the property or being recklessly indifferent as to whether or not the conduct does damage the property, is guilty of or whatever the offence may be in the various clauses.

So, there is quite a difference created, in fact, by the removal of the definite article, as the Attorney put it, because what will now be the case is that, whereas this currently provides that, if a person does certain things intending to damage the property, that is an offence; now it will provide that, if a person does certain things intending to damage property, regardless of which property they damage, it will be the same offence. Is that—

The Hon. M.J. ATKINSON: Correct.

Mrs REDMOND: I have had very little time to consider this, but I think that it is probably not of consequence and should not have any unintended consequences in terms of the implementation of the legislation we are supporting. Therefore, for the moment, unless we see any problem with it between the houses, I indicate the support of the opposition.

Amendments carried; clause as amended passed.

Remaining clause (7) and title passed.

Bill reported with amendment.

Third Reading

Bill read a third time and passed.

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